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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


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PRACTICE 


SPECIAL  ACTIONS 


COURTS  OF  RECORD 


STATK    OK    NEW   YORK, 


UNDER   THE 


CODE  OF  CIVIL   PROCEDURE  AND   STATUTES,  WITH  FORMS. 


BY 


J.    NEWTON    FIERO, 

DEAN  OF  THE  ALBANV  LAW  SCHOOL. 


IN    TWO    VOLUMES. 


VOL.  I. 


SECOND    EDITION. 


ALBANY,  N.  Y. : 
MATTHEW    BENDER      PUBLISHER. 

1897. 


Entered  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and  eighty-eight, 

By   MATTHEW   BENDER, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and  ninety-seven, 

By   MATTHEW   BENDER, 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


WEED-PARSONS     PRINTING     COMPANY, 

PRINTERS   AND    ELECTROTYPERS, 

ALBANY,    N.  Y. 


T 


TO 

ALTON    B.    PARKER, 

SAMUEL    EDWARDS,  EDGAR    L.    FURSMAN, 

D.   CADY    HERRICK,  ALDEN    CHESTER, 

EMORY    A.    CHASE, 

JUSTICES    OF    THE    SUPREME   COURT 

FOR    THE 

THIRD   JUDICIAL    DISTRICT 

THIS   WORK    IS    DEDICATED    IN    RECOGNITION    ALIKE    OF  THEIR    STANDING   AND 

ATTAINMENTS    WHEN    AT    THE    BAR,    AND    THEIR    COURTESY    AND 

ABILITY    UPON    THE    BENCH 

BY     THE     AUTHOR 


>v>va^^\ 


PREFACE  TO  SECOND   EDITION. 


The  fact  that  something  more  than  eight  years  have  elapsed 
since  the  pubUcation  of  this  work  would  not  alone  justify  a 
second  edition,  but  for  the  many  changes  in  that  portion  of  the 
Code  of  which  it  treats,  and  the  exceedingly  large  number  of  de- 
cisions construing  or  referring  to  those  sections. 

In  view  of  these  considerations,  together  with  the  increasing 
frequency  with  which  this  class  of  actions  is  brought,  more  par- 
ticularly those  relating  to  corporations  and  involving  receiver- 
ships, a  new  edition  seems  to  be  both  timely  and  desirable. 

In  the  preparation  of  the  work,  an  effort  has  been  made  to 
remedy  the  defects  and  omissions  in  the  first  edition.  To  this 
end  an  analytical  table  of  contents  has  been  prepared  which  is 
calculated  to  greatly  facilitate  reference  to  any  desired  topic. 
Its  use  is  recommended  as  more  convenient  than  the  index,  by 
reason  of  its  smaller  bulk  and  reference  to  the  articles  and  subdi- 
visions, as  well  as  Code  sections,  as  being  quite  as  likely  as  the 
index  to  assist  in  turning  to  the  subject  desired.  The  index  has 
been  entirely  re-written  and  much  improved  in  substance  and 
arrangement.  The  sections  of  the  Code,  statutes,  decisions  and 
forms  are  all  indexed  under  the  title  to  which  they  appertain, 
as  under  the  head  Ejectment,  Partition,  Divorce,  Receiver, 
Mechanic's  Liens  and  the  like. 

In  addition,  there  is  a  full  index  to  the  sections  of  the  Code 
and  also  to  the  precedents,  under  those  titles,  again  giving  the 
page  where  any  section  or  any  precedent  is  to  be  found.  There 
are  also  numerous  cross  references  as  to  "Parties,"  "Pleadings," 
"Trial,"  "Judgment,"  etc. 

The  more  important  change,  however,  is  in  the  plan  of  the 
work  by  which  it  is  broken  up  into  articles  and  subdivisions, 
under  which  are  grouped  the  Code,  statutes,  authorities  and  pre- 

[v] 


vi  I'REFACE   TO    SECOND    EDITION. 

cedents  relevant  to  each  topic.  This  has  involved  a  re-arrange- 
ment of  the  Code  provisions,  which  are  apparently  thrown  into 
that  statute  without  any  regard  to  logical  sequence  or  chronolog- 
ical order  of  procedure.  In  this  respect  there  is  a  departure  from 
the  arrangement  in  the  first  edition,  where  it  was  attempted  to 
follow  the  order  of  sections  as  they  stand  and  give  the  decisions 
under  each.  An  effort  has  now  been  made,  in  the  treatment  of 
each  subject,  to  so  group  and  arrange  the  separate  provisions  as 
to  bring  under  a  single  head  those  matters  logically  connected 
with  each  other.  The  inconvenience  arising  from  the  original 
arrangement  as  it  stands  in  the  Code,  is  illustrated  by  the  fact 
that  the  first  two  sections  in  Ejectment  provide  as  to  what  judg- 
ment may  be  recovered  in  the  action,  the  succeeding  sections 
restrict  the  action  within  certain  limits  and  state  when  it  can- 
not be  maintained,  while  the  two  following  sections  provide  for 
the  cases,  so  far  as  the  title  treats  at  all  of  that  subject,  when  the 
action  can  be  maintained,  and  the  character  of  the  judgment  to  be 
recovered  is  again  provided  for  by  the  very  last  section  of  the 
topic.  A  like  condition  of  things  exists  under  Foreclosure,  where 
the  first  section  treats  of  final  judgment,  followed  by  regulations 
as  to  parties,  pleadings  and  other  matters  relative  to  the  com- 
mencement and  progress  of  the  action.  In  Partition  apparently 
no  attempt  was  made  at  orderly  arrangement,  and  the  confusion 
resulting  is  intolerable.  The  same  is  true  to  a  marked  degree  of 
the  statutes  relating  to  Mechanic's  Liens.  These  are,  however, 
only  illustrations  of  the  inconvenient  and  illogical  arrangement. 
It  is,  therefore,  impossible  to  treat  the  subject  fully  or  with  any 
degree  of  clearness,  without  re-arrangmg  the  provisions  in  such 
a  manner  as  to  bring  together  those  relating  to  the  same  subject- 
matter. 

In  these,  as  in  all  cases  of  procedure,  the  logical  order  seems  to 
be  the  chronological  one,  that  is  to  say,  the  order  of  time  in  which 
matters  of  procedure  naturally  follow  each  other.  In  accordance 
with  this  view,  the  sections  have  been  treated,  so  far  as  possible, 
in  such  a  way  as  to  first  discuss  when  the  action  can  be  main- 
tained, followed  by  a  statement  of  when   it  will   not  lie,  what  is 


PREFACE   TO    SECOND    EDITION.  Vli 

necessary  to  entitle  plaintiff  to  recover,  when  and  where  the 
action  can  be  brought,  with  consideration  of  the  proper  and 
necessary  parties.  The  pleadings,  matters  of  defence,  evidence 
upon  the  trial,  together  with  other  matters  of  practice,  including 
costs,  follow  ;  the  judgment  and  its  effect  is  then  considered, 
followed  by  discussion  of  any  questions  which  may  arise  in  con- 
nection with  or  after  Judgment.  It  is  believed  that  this  method 
of  treatment  will  do  much  toward  rendering  the  Code  more 
intelligible  and  greatly  facilitate  the  work  of  the  practitioner. 
It  is  simply  correcting,  so  far  as  possible,  the  failure  to  properly 
perform  their  work  by  the  revisers. 

The  condition  of  the  statutes  is,  in  some  instances,  in  spite  of 
such  re-arrangement,  such  as  to  render  it  impossible  to  treat  the 
subject  satisfactorily,  since  the  law  has  come,  by  careless  drafting 
and  illy  considered  amendments,  to  a  state  of  inextricable  con- 
fusion. This  is  notably  true  as  to  the  regulations  relative  to 
corporations  and  receivers. 

The  citations  include  volumes  i  lo  to  151  New  York,  50  to  92 
Hun,  8  volumes  Appellate  Division  and  i  to  17  Miscellaneous. 
Special  attention  has  been  given  to  the  citation  of  other  than  the 
official  reports,  viz.  :  20  to  70  State  Reporter,  3  to  40  Supplement, 
15  to  24  Civil  Procedure  Reports,  22  to  31  Abbott's  New  Cases, 
in  all  something  over  two  hundred  volumes  of  reports. 

The  author  regrets  the  necessity  for  expanding  the  work  into 

two  volumes,  but  it  has  been  impossible  to  do  otherwise  and  give 

the  practice  so  fully  as  is  desirable  in  a  work  undertaking  to  treat 

the  subject  with  any  degree  of  fullness  or  accuracy,  as  is  evident 

from  the  number  of  decisions  necessarily  cited.      The  fault  lies  in 

the  volume  of  legislation   and   the  mass  of  judicial  decision,  the 

remedy  for  which  has  not  yet  been  discovered,  or  if  found  has  not 

been  applied. 

Albany,  February  ist,  1897. 

J.    NEWTON    FIERO. 


ANALYTICAL  TABLE  OF  CONTENTS. 


CHAPTER  HEADINGS. 

Chapter.  page. 

1.  Ejectment i 

2.  Partition 102 

3.  Dower 278 

4.  Foreclosure 337 

5.  Action  to  compel  determination  of  a  claim  to  real  property  486 

6.  Waste 499 

7.  Nuisance 5^3 

8.  Action  by  reversioners  and  joint  tenants 571 

9.  Action  for  cutting  trees  or  timber  and  when  treble  dam- 

ages allowed 577 

10.  Notice  of  pendency  of  action 5^5 

11.  Judgment  for  and  sale  of  real  estate 601 

12.  Miscellaneous  provisions  relating  to  real  estate  actions  . .  660 

13.  Mechanic's  lien 664 

14.  Replevin 737 

15.  Action  to  foreclose  a  lien  upon  a  chattel 826 

16.  Action  to  annul  a  void  or  voidable  marriage 836 

17.  Divorce 856 

18.  Action  for  separation 9H 

19.  Provisions  applicable  to  nullity,  divorce  and  separation  . .  937 

20.  Receivers 9^9 

21.  Actions  relating  to  corporation 1087 

22.  Action  by  or  against  an  executor  or  administrator 1188 

23.  Action  by  a  creditor  against  his  debtor's  next  of  kin,  lega- 

tee, heir  or  devisee 1 247 

24.  Action  to  establish  or  impeach  a  will 1265 

25.  General  and  miscellaneous  provisions  relating  to  estates,  1282 

26.  Judgment  creditor's  action 1284 

27.  Action  by  private  person  upon  an  official  bond 1358 

28.  Action  by  a  private  person  for  a  penalty  or  forfeiture 1369 

29.  Certain  actions  to  recover  damages  for  wrongs i377 

30.  Miscellaneous  actions  and  rights  of  action 1403 

[ix] 


X  ANALYTICAL   TABLE    OF   CONTENTS. 

Chapter.  page. 

31.  Action  by  or  against  an  unincorporated  association 1431 

32.  Actions  by  or  against  certain  county,  town  and  municipal 

officers 1441 

2^.   Actions  and  rights  of  action  by  and  between  joint  debtors  1472 

34.  Action  against  usurper  of  an  office  or  franchise 1487 

35.  Miscellaneous  actions  on  behalf  of  the  people 1507 

CHAPTER  I. 

EJECTMENT. 

Article.  page. 

I.   Nature  and  purpose  of  the  action 2 

II.   When  the  action  can  be  maintained   4 

III.  When  the  action  will  not  lie 9 

Subd.  I.   Mortgagee  cannot  maintain  ejectment 9 

§  1498.   Mortgagee  cannot  maintain  action 9 

Subd.  2.  Action  cannot  be  maintained  for  dower 10 

§  1499.   Action  cannot  be  maintained  for  dower.  10 

Subd.  3.  When  action  cannot  be  maintained 10 

IV.  By  whom  the  action  can  be  maintained 13 

Subd.  I.   One  or  more  joint  tenants 13 

g  1500.   Separate  action  by  joint  tenant  or  tenant 

in  common 13 

Subd.  2.  Grantee  of  lands  held  adversely 15 

§  1501.  Grantee    of    lands    held   adversely  may 

maintain  action 15 

Subd.  3.   Persons  vested  with  right  to  immediate  pos- 
session   18 

Subd.  4.   Reversioner  may  bring  action  after  tenant's 

default 22 

§  1680.  Reversioner,  etc.,  may  bring  action  after 

tenant's  default 22 

V.  What  is  necessary  to  entitle  plaintiff  to  recover 22 

Subd.  I.   Plaintiff  must  recover  on  the  strength  of  his 

own  title 22 

Subd.  2.  When  possession  gives  presumption  of  title..  24 
VI.  Who  may  be  defendants  and  who  must  be  joined  as 

such 26 

§  1502.   Against  whom  action  to  be  brought  ....  26 

§1503.  Who  may  be  joined  as  defendants   27 

VII.   Production  of  authority  by  attorney.  . , 31 

§  1512.   Motion  for  plaintiff's  attorney  to  produce 

his  authority 31 


ANALYTICAL  TABLE  OF  CONTENTS.  XI 

Article.  page. 

VII.   Production  of  authority  by  attorney 31 

§1513.   Order  thereupon 31 

§  1514.   Evidence  of  authority 32 

VIII.   The  complaint    33 

§1511.   Property    claimed    in    action;    how    de- 
scribed in  complaint 33 

IX.   Defences  legal  and  equitable,  and  how  pleaded 43 

Subd.  I.   Defences  generally 43 

Subd.  2.   Adverse  possession  as  a  defence 46 

Subd.  3.   Equitable  defences 55 

Subd.  4.   Defences  how  pleaded 57 

X.   What  rents  and  profits  are  recoverable  and  receiver- 
ship    63 

Subd.    I.  What  damages  can  be  recovered 63 

§  1496.   Plaintiff  may  recover  damages  with  the 

land   63 

§  1497.   Rents    and    profits    to    be    included    in 

damages   63 

§  1531.    Damages    recoverable;     set-off    by    de- 
fendant   63 

Subd.    2.  When  receiver  appointed 70 

XI.   Right  to  recover  against  occupants  separately 70 

§  15 16.   Rule  when  there  are  distinct  occupants,  70 

§1517.   The  last  section  qualified 71 

§  1518.   When  plaintiff  may  recover  against  one 

defendant  subject  to  rights  of  others,  72 

XII.  When  action  will  be  severed 72 

§1521.   Abatement  of  action 72 

§  1522.   Action    to    be    divided,    when    different 

persons  succeed  to  different  parcels.  .  72 
§  1523.   Id.;    when  different  persons  succeed  to 

real  property  and  to  rents  and  profits,  72 

XIII.   Evidence 73 

Subd.    I .  When  ouster  to  be  proved 73 

§  1515.  When  ouster  to  be  proved 73 

Subd.    2.  What  evidence  is  necessary  and  proper  in 

ejectment , 75 

XIV.  Verdict   78 

§  1519.   Verdict,  etc.,  to  state  nature  of  plaintiff's 

estate 7^ 

§  1520.   Expiration  of  plaintiff's  title  before  trial,  78 

XV.   New  trial  and  its  effect  and  evidence  thereon   80 

§  1525.   New  trial  may  be  granted 80 


xii  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 

XV.  New  trial  and  its  effect  and  evidence  thereon 80 

§1526.   Effect  of  judgment  by  default,  etc 81 

§  1527.   Id. ;  exception  in  cases  of  disability. ...  81 

§  1528.  The  last  three  sections  qualified 81 

§  1530.   Evidence  on  new  trial 81 

XVI.   Effect  of  judgment 87 

§  1529.   Possession   not  to  be  changed  by  vaca- 
ting of  judgment. . 87 

§  1524.   Eflfect  of  judgment  rendered  after  trial 

of  issue  of  fact 87 

XVII.  Costs  in  ejectment  9° 

XVIII,   Execution  in  ejectment 92 

XIX.   Ejectment   for   non-payment  of   rent  and  procedure 

thereon 95 

§  1504.   When  action  may  be  brought  for  non- 
payment of  rent 95 

§  1505.   Id.;  when  right  of  re-entry  is  reserved 

for  want  of  distress 95 

§  1506.   Action  against  tenant,  when  proceedings 

to  be  stayed 95 

§1507.   Id.;    amount    of    rent    in    arrear  to    be 

stated  in  judgment 95 

§  1508.   Id.;  when  possession  to  be  restored  to 

defendant 95 

§  1509.  The  same   96 

§1510.   Id.;  use  of  property,  when  set  off  against 

rent  96 

CHAPTER  II. 

PARTITION. 

Article.  page. 

I.   Nature  of  action  and  jurisdiction  of  the  courts 104 

Subd.  I.   Character  of  the  action 104 

Subd.  2.   Jurisdiction  of  the  courts 105 

II.   Partition  by  parol  and  by  agreement 106 

Subd.  I.   Partition  by  parol 106 

Subd.  2.   Partition  by  agreement 107 

§  1590.   Partition    by  guardian    of   infant,   com- 
mittee of  lunatic,  etc 107 

§  1591.   Contents  of  petition 107 

§  1592.   Court  may  authorize  partition ...  107 

§1593.   Effect  of  releases 108 


ANALYTICAL  TABLE  OF  CONTENTS.  XUl 

PAGE. 

Ataxic  le 

III.  When  action  may  be  brought  and  by  whom   io8 

Subd.  I.  When  action  may  be  brought  by  joint  ten- 
ants or  tenants  in  common  • io8 

8  ic;^2    When     action     for    partition     may    be  108 

brought ^°^ 

Rule  65.   Partition,    to    embrace    all    lands    held    in 

common  ;  infants •  •  •  ^°^ 

Subd.  2.  When  remainderman  can  maintain  the  action,  117 

§  1533.   Id. ;  by  remainderman 1 1? 

Subd.'  3.  When  heir  may  maintain  action   120 

8  1537.  When  heir  may  maintain  action  for  par- 
tition of  devised  property 120 

IV    Restrictions  and  regulations  as  to  partition  by  an 

.      r         ^                                                                                                               122 

mfant 

Subd.  I.  Authority    necessary   from   the    Surrogate  s 

^       .                                                           122 

Court . 

§  1534.   Id.;  by  an  infant 122 

Subd.  2.   Guardian  a^//V^;;/,  in  partition 124 

I  1535.   Guardian  ad  litem,  how  appointed 124 

Subd.'  3.   Security  required  from  guardian  ad  litem 131 

§  1536.   Security •  • ^^i 

V.  Necessary  and  proper  parties  in  partition i33 

Subd.  I.  Who  are  necessary  and  proper  parties i33 

j                           §  1538.  Who  must  be  parties   ^33 

§  1539.  Who  may  be  made  parties i34 

§  1594.  When  the  State  is  interested i35 

1  Subd '2.   Supplemental  summons  in  case  of  death  of 

\                                           .                                                            142 

}                                       party ^ 

§  1588.   Proceedings  on  death  of  parties 142 

Subd.  3.  Creditors  having  liens  on  undivided  shares 

as  parties ^^^ 

§  1540.   Id. ;  as  to  persons  having  liens i45 

■           VI.   Complaint  to  state  interests  of  parties 146 

'                           §  1542.  Complaint  to  state  interests  of  parties. .  146 

VII.  Matters  of  practice • 

Subd    I     Notice,  object  of  action  and  order  of  publi- 

162 
cation 

§  1541.   Provision  where  a  party  is  unknown 162 

Subd.  2.   Defences,  how  pleaded  and  effect 166 

Subd.  3.   Miscellaneous  matters  of  procedure 167 

Subd.  4.   Appeals    ^'^^ 

.                                                                                   . .  173 

VIII.  Receiver 


xiv  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 

IX.   What  questions  may  be  tried  in  the  action  and  in  what 

manner 174 

Subd.  I.  Title  of  parties  may  be  tried 174 

§  1543.  Title  of  parties  may  be  tried 174 

Subd.  2.   Issues  of  fact  triable  by  jury. 178 

§  1544.   Issues  of  fact  triable  by  jury 178 

X.   Reference  as  to  title  and  as  to  creditors  ...      179 

Subd.  I.  Reference  as  to  title 179 

§1545.  When  title  to  be  ascertained  by  the  court,  179 

Rule  66.   Reference  as  to  title 180 

Subd.  2.   Reference  as  to  creditors 190 

§  1561.   Reference  to  inquire  as  to  creditors. .  . .  190 

§  1562.   Duty  of  referee 190 

XI.   Interlocutory  judgment 194 

Subd.  I.   Judgment  for  sale  or  for  actual  partition  . . .  194 

§  1546.   Interlocutory  judgment 194 

Subd.  2.   Special  provisions  in  judgment 199 

§  1563.   Money  to  be  paid  into  court 199 

§  1572.   Unknown  owners 199 

§1573.   Sale;  terms  of  credit  thereupon 199 

§  1574.   Credit ;  how  secured   199 

§  1575.   Separate  securities 199 

XII.   Dower  interest  and  how  affected  by  sale 212 

§  1567.   Sale  of  dower  interest 212 

§  1568.   Purchaser  to  hold  the  property  free  there- 
from   212 

§  1569.  Gross  sum  to  be  paid  to  or  invested  for 

tenant  in  dower,  etc 212 

§  1570.   Interests  of  owners  of  future  estates  to 

be  protected. ...... .    213 

§1571.   Married  woman  may  release  her  interest,  213 
Rule    70.  Gross  sum  in  payment  of  life  estate,  how 

ascertained 214 

Rule    68.   Payment    of   money    into    court;     designa- 
tion of  trust  companies,  etc 219 

Rule  180.   (Chancery)   Investment  of  funds  paid  into 

court 220 

XIII.  Sale,  report  of  sale  and  confirmation,  re-sale 220 

Subd.  I.   Report  of  sale  and  confirmation 220 

§  1576.   Report  of  sale 220 

Subd.  2.   Purchaser  when  compelled  to  take  title  ....  225 

XIV.  Final  judgment,  its  contents  and  effect 230 

Subd.  I.   Contents  of  final  judgment 230 


ANALYTICAL  TABLE  OF  CONTENTS.  XV 

Article.  page. 

XIV.   Final  judgment,  its  contents  and  effect 230 

§  1577.   Final  judgment,  effect  thereof 230 

§  1578.   Id.;  effect  thereof  upon  incumbrancers,  231 

§  1582.   Shares  of  unknown  and  absent  owners. .  231 

§1583.   Id.;  of  tenants  of  particular  estates. .. .  233 

§  1584.   Court  may  require  security  to  refund. . .  233 
§  1585.   Security  to  be  taken  in  name  of  county 

treasurer 233 

§  1586.   Action  thereupon 233 

§  1595.   Exemplified  copy  of  judgment  may  be 

recorded 233 

Subd.  2.   Distribution  of  proceeds  of  sale 242 

§  1580.   Distribution  of  proceeds 242 

§  1581.   Shares  of  infants 242 

Subd.  3.   Rents  may  be  adjusted 250 

§  1589.   Rents,  etc.,  may  be  adjusted 250 

Subd.  4.   Costs 252 

§  1579.   Costs  and  expenses;  how  paid 252 

XV.  Application  for  moneys  paid  into  court 255 

§  1564.  Application  for  money 255 

§1565.   Payment  of  incumbrances 255 

§1566.   Other  parties  not  to  be  delayed 255 

Rule  69.   Order   for   payment   out   of    court,  what   to 

specify,  etc 255 

XVI.   Actual  partition 257 

Subd.  I.   Partial  partition,  when  made  . . 257 

§  1547.   Partial  partition,  when  made 257 

§  1548,   Shares  may  be  set  off  in  common 258 

Subd.  2.   Interlocutory  judgment  for  actual  partition; 

powers  and  duties  of  commissioners 258 

§1549.   Appointment  of  commissioners 258 

§  1550.   Commissioners  to  be  sworn,  etc 258 

§1551.   Id. ;  when  to  make  partition 258 

§  1552.   Partition,  how  made 259 

§  1553.   Provision    where    there    is   a    particular 

estate 259 

Subd.  3.   Report  of  commissioners  and  confirmation  of 

report 265 

§  1554.   Report  of  commissioners 265 

§  1555.   Fees  and  expenses 266 

§  1556.   Confirming  or  setting  aside  report 266 

Subd.  4.    Final  judgment  for  actual  partition 269 

§  1557.   Final  judgment  on  report;  effect  thereof,  269 


xvi  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 

XVI.  Actual  partition 257 

§  1558-  Judgment  must  direct  delivery  of   pos- 
session   269 

§1559.   Costs,    how   awarded;    id.;    against    un- 
known parties 269 

§  1560.   Sale  of  property,  when  directed 270 

Subd.    5.   Compensation  for  equality  of  partition  ....  273 

§  1587.   Compensation  to  equalize  partition 273 

CHAPTER  III. 

DOWER. 
Article.  page. 

I.  The  right  of  dower 279 

Subd.  I.   Origin  and  nature  of  dower 279 

Subd.  2.  When  and  in  what  lands  widow  entitled  to 

dower  283 

L.  1896,  Chap.  547: 

§  170.   Dower 283 

§  183.   Effect  of  acts  of  husband 283 

Subd.  3.   Dower   not  allowed  in   lands  exchanged  or 

mortgaged  for  purchase  money 289 

L.  1896,  Chap.  547: 

§  171.   Dower  in  lands  exchanged 289 

§  172.   Dower    in   lands  mortgaged  before  mar- 
riage          289 

§  173.   Dower  in  lands  mortgaged  for  purchase- 
money 289 

§  174.  Surplus  proceeds  of  sale  under  purchase 

money  mortgages 289 

§  175-  W'idow  of  mortgagee  not  endowed 289 

Subd.    4.   Pecuniary  provision    in  lieu  of    dower  and 

election 292 

L.  1896,  Chap.  547: 

§  177.  When  dower  barred  by  jointure 292 

§  178.  When    dower   barred    by    pecuniary   pro- 
visions      o 292 

§  179.  When  widow  to  elect  between  jointure  and 

dower 292 

§  180.   Election  between  devise  and  dower 292 

§181.  When  deemed  to  have  elected 29^ 

Subd.    5.  How  dower  is  released  or  barred 299 

§  1604.  Action  barred  by  assignment  of  dower, . .        299 


I 


ANALYTICAL  TABLE  OF  CONTENTS.  XVU 

Article.  page. 

I.  The  right  of  dower 279 

L.  1896,  Chap.  547: 

§  186.   Divorced  woman  may  release  dower 299 

§  187.   Married   woman    may    release    dower  by 

attorney 3°° 

Subd.  6.   How  dower  affected  by  divorce 306 

L.  1896,  Chap.  547: 

§  176.  When  dower  barred  by  misconduct 306 

§  182.   When  provision  in  lieu  of  dower  is  forfeited  306 

Subd.  7.   Right  of  widow  to  quarantine  and  crops 308 

L.  1896,  Chap.  547: 

§  184.   Widow's  quarantine 3°^ 

§  185.   Widow  may  bequeath  a  crop 308 

II.   Limitation  of  the  action  by  lapse  of  time 308 

§1596.   Limitation  of  action  for  dower 308 

III.  The  remedy  and  parties  to  the  action 31° 

§  1597-   Against  whom  action  to  be  brought 310 

§  1598.  Who  may  be  joined  as  defendants 31° 

§  1599.   Id. ;  where  defendants  claim  in  severalty,  310 

IV.  Pleadings  and  miscellaneous  matters  of  practice 311 

§  1605.   Collusive  recovery  not  to  prejudice  in- 
fants    311 

8  1606.   Complaint 3^1 

§  1616.   Appeal  not  to  stay  execution,  if  under- 
taking is  given 311 

§  1625.   Certain  provisions  of  article  second  made 

applicable 3^2 

V.   Interlocutory  judgment  for  admeasurement  of  dower,  319 
§  1607.   Interlocutory  judgment  for    admeasure- 
ment    319 

VI.   Commissioners,  their  powers,  duties  and  report 322 

§  1608.   Oath   of   commissioners,   etc.,   removal, 

filling  vacancy 3-2 

§1609.   Dower,  how  admeasured 322 

§  1610.   Report  thereupon 323 

§  161 1.   Setting  aside  report 323 

§1612.   Fees  and  expenses 323 

VII.  What  damages  may  be  recovered  in  the  action '  328 

§  1600.   Damages   may  be   recovered,   how  esti- 
mated   328 

§  1601.   Id. ;  in  action  against  alienee  of  husband,  328 

§  1602.   Id. ;  where  several  parcels,  etc.    329 

§  1603.   Id. ;  against  heirs,  etc.,  aliening  land.  . .  329 


xviii  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 
VIII.  Agreement    to   accept   gross    sum   and    proceedings 

thereon 33i 

§  1617.   Plaintiff  may  consent  to  receive  a  gross 

sum 331 

§  16 r8.   Defendant  may  consent  to  pay  it;  pro- 
ceedings thereupon 331 

§  16 1 9.   Interlocutory  judgment  for  sale   331 

§  1620.   Id. ;  directing  a  part  to  be  laid  off 331 

§  1621.  Liens  to  be  ascertained 332 

§1622.   Id.;  payment  of  or  sale  subject  to 332 

§  1623.   Report  of  sale   332 

§  1624.   Final  judgment  thereon 332 

Rule  70.   Gross  sum  in   payment  of  life   estate,  how 

ascertained 333 

IX.   Final  judgment  and  its  effect 334 

§  1613.   Final  judgment 334 

§  16 14.   Plaintiff  may  recover  sum  awarded;  court 

may  modify  judgment 334 

8  1615.   Junior  incumbrancers  not  affected,   by 

admeasurement 334 

CHAPTER  IV. 

FORECLOSURE. 

Article.  page. 

I.    Nature  of  the  action  and  courts  having  jurisdiction  .  337 

Subd.  I.   Character  of  the  action 338 

Subd.  2.   Strict  foreclosure 339 

Subd.  3.  Courts  having  jurisdiction  and  place  of  trial,  341 

II.   Parties  plaintiff  and  defendant 342 

Subd.  I.   Parties  plaintiff 342 

Subd.  2.   Necessary  and  proper  parties  defendant....  345 
t<  1627.   Persons  liable  for  mortgage  debt  may  be 

made  defendant  etc 345 

Subd.  3.   Prior  lienors  not  proper  parties 354 

III.  Complaint  and  notice  of  pendency  of  action 356 

Subd.  I.   Complaint 356 

§  1629.   Complaint   to  state  whether  such  action 

brought 356 

Subd.    2.   Notice  of  pendency  of  action 359 

§  1631.   Notice  of  pendency  of  action  to  be  filed.  359 

IV.  Answer  and  defences 359 

Subd.  I.   Answer  generally 359 


ANALYTICAL  TABLE  OF  CONTENTS.  XIX 

Article.  page. 

IV.   Answer  and  defences 359 

Subd.  2.   Counterclaim 368 

Subd.  3.   Tender  as  a  defence 369 

Subd.  4.   Demurrer 371 

Subd.  5.   Relief  granted  defendants 372 

V.   Matters  of  practice 373 

Subd.  r.   Service  personal  and  by  publication 373 

Subd.  2.   Notice  of  no  personal  claim 374 

Subd.  3.   Guardian  ad  litem  for  infant  defendant 375 

Subd.  4.   Miscellaneous  rules  and  regulations 377 

Subd.  5.   No  other  action  to  be  brought  without  leave 

of  the  court 390 

§  1628.   Other  actions  for  mortgage   debt,   when 

prohibited 390 

§  1630.   If  judgment  rendered  therein,  execution 

must  be  returned 390 

Subd.  6.   Receiver  when  appointed,  powers  and  duties,  395 

Subd.  7.   Costs 401 

VI.   Reference  to  compute  amount  due 403 

Subd.  I.   Order  of  reference 403 

Rule  60.   Failure  to  answer  on  mortgage  foreclosure, 

reference,  judgment  on 403 

Rule  79.   Referee,  who  may  be 404 

Subd.  2.   Duties  and  report  of  referee 407 

VII.   Judgment,  the  character  and  extent  of  relief 411 

Subd.  I.   Judgment,  the  character  and  extent  of  relief 

granted     411 

§  1626.    Final  judgment,  what  to  contain 411 

Rule  61.   Form  of  judgment  for    sale,  disposition  of 

surplus  money,  etc 411 

Subd.  2.   Effect  of  final  judgment  and  conveyance....  421 

§  1632.   Effect  of  conveyance  upon  sale 421 

Subd.  3.   Motion  to  vacate  judgment  and  appeal 428 

VIII.   Sale  and  manner  in  which  it  is  conducted 430 

Rule  63.  Mortgage  and  assignments  to  be  filed  or 
recorded  before  conveyance;  expense  al- 
lowed in  costs 430 

IX.   Judgment  for  deficiency   430 

X.   Proceedings  when  mortgagee's  debt  not  all  due 441 

§  1634.  When  complaint  to  be  dismissed  on  judg- 
ment of  sum  due 441 

§  1635.   Payment  after  judgment;  when  proceed- 
ings stayed 441 


XX  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 

X.   Proceedings  when  mortgagee's  debt  not  all  due 441 

§1636.  When  part  only  of  the  property  to  be  sold,  441 

§  1637.   When  the  whole  property  may  be  sold..  441 

XI.   Surplus  proceedings 445 

Subd.  I.   Rights  of  parties  to  surplus  445 

§  1633.   Disposition  of  proceeds 445 

Subd.  2.   Method  of  distributing  surplus 455 

Rule  64.  Application  for  surplus   moneys,  reference, 

searches,   unsatisfied  liens 455 

Subd.  3.   Costs  and  appeal  from  order  in  surplus  pro- 
ceedings    466 

XII.   Precedents  for  foreclosure  of  mortgage  given  to  se- 
cure bonds 467 


CHAPTER  V. 

DETERMINATION  OF  A  CLAIM  TO  REAL  PROPERTY, 

ACTION  TO  COMPEL. 

Article.  page. 

I.   Nature  and  object  of  action 486 

II,  When  action  maintained  and  what  must  be  alleged. .  487 

§  1638.  Who  may  maintain  action 487 

§  1639.   Complaint   487 

§  1650.  This  article  applies  to  corporations 488 

III.   Proceedings  after  issue  joined 493 

§  1640.   Proceedings     when     defendant     denies 

plaintiff's  title 493 

§  1641.   Id. ;  when  he  pleads  title   493 

§  1642.   Proceedings  the  same  as  in  ejectment  ..  493 
§  1643.   Proceedings  when  defendant  claims  in 

reversion  or  remainder 494 

IV.   Judgment  and  its  effect 495 

§  1644.   Judgment   awarding   defendant   posses- 
sion, etc 495 

§  1645.   Judgment  for  plaintiff 496 

§  1646.   Effect  of  judgment 496 

V.   Proceedings  when  against  woman  claiming  dower. . .  497 
§  1647.  Action  to  determine  widow's  dower.,..  497 
§  1648.   Proceedings,  if  plaintiff  admits  defend- 
ant's claim 497 

§  1649.   Id.;  when  defendant's  claim  is  denied..  498 


ANALYTICAL  TABLE  OF  CONTENTS.  XXI 

CHAPTER  VI. 

WASTE. 

Article.  ^^^^• 

I.  What  constitutes  waste 499 

II.  By  whom  action  maintained 5°3 

I  1652.   Action   by  heir,    devisee   or   grantor   of 

reversion 5°3 

§  1653.   Id. ;  by  ward  against  guardian 503 

§  1654.   Id. ;  by  grantee   of   real    property  sold 

under  execution 5^3 

§  1656.  Action  against  joint  tenant  or  tenant  in 

common   5°3 

III.  Against  whom  action  lies  and  defences 50? 

§  165 1.  Who  liable  to  action  for  waste 5°? 

IV.  Injunction  to  restrain  waste S°^ 

§  1681.  Defendant,  how  prevented  from  commit- 
ting waste,  etc 5°^ 

§  1442.   Order  to  prevent  waste,  when  and  how 

applied  for. S°9 

V.   Judgment 5ii 

§  1655.   Judgment    in    action    against   tenant   of 

particular  estate 5^^ 

VI.   Miscellaneous  provisions  as  to  waste S^^ 

§1657.   Id.;  interlocutory  judgment  for  partition,  511 

§  1658.   Id.;  damages  to  be  deducted  from  de- 
fendant's share 5^2 

§  1659.  View,   when    not    necessary,    when   and 

how  made 5^2 

CHAPTER  Vn. 

NUISANCE. 

Article.  ''^^^■ 

I.  The  nature  of  the  statutory  action 5^3 

§  1663.   Application  of  this  article 5^3 

II.  When  the  action  will  lie 5^^ 

§  1660.  When  action  may  be  brought 518 

III.  Who  can  maintain  the  action 53° 

IV.  Defendants  and  defences 542 

§  166 1 .   Defendants  therein 542 

V.   Pleadings  and  practice 54^ 

Subd.  I.   Pleadings 548 

Subd.  2.   Practice   557 


xxii  ANALYTICAL   TABLE    OF   CONTENTS. 

Article.  page. 

VI.  Relief  granted  and  measure  of  damages 560 

§1662.   Final  judgment 560 

VII.   Injunction  in  action  for  nuisance 567 


CHAPTER  VIII. 

REVERSIONERS  AND  JOINT  TENANTS,  ACTION  BY. 

Article.  page. 

I.   Actions  against  guardians  or  trustees  holding  over. .  571 
§  1664.  Certain    persons   holding   over   deemed 

trespassers.     Action  against  them 571 

II.  Action  by  reversioner 571 

§  1665.  Reversioner,  etc.  may  maintain  action..  571 
III.  When   joint   tenants   may    maintain    action    against 

each  other 573 

§  1666.   Joint  tenant,  etc.  may  maintain  action 

against  his  co-tenant 573 


CHAPTER  IX. 

CUTTING  TREES  OR  TIMBER  AND  WHEN  TREBLE 
DAMAGES  ALLOWED. 

PAGE. 

§  1667.  Action  for  cutting,  etc.,  trees 577 

§  1668.  Id.;  when  treble  damages  may  be  re- 
covered         577 

§  1669.  Treble   damages   for   forcible    entry   or 

detainer.. 577 

§  1 184.  How  double,  treble  or  increased  dam- 
ages, found  and  awarded 579 

Laws  1895,  chap.  395,  §  280.  Actions  for  tres- 
passes upon  forest  preserve 583 


CHAPTER  X. 

PENDENCY  OF  ACTION,   NOTICE  OF. 

Article.  page. 

I.  Contents  and  filing  of  notice  of  pendency   5^5 

Subd.  I.   Nature  and  office  of  lis  pendens 5^5 

§  1670.   Notice  of  pendency  of  action  by  plaintiff,  585 

Subd.  2.  When  lis  pendens  proper 5^6 


ANALYTICAL    TABLE   OF   CONTENTS.  XXIU 

Article.  page. 

I.  Contents  and  filing  of  notice  of  pendency 585 

Subd.  3.  Contents  of  notice  of  pendency  and  amend- 
ments   58S 

Subd.  4.  When  and  where  Us  pendens  to  be  filed 589 

§  1672.   Notice  to  be  recorded  and  indexed 589 

Subd.  5.  Lis  pendens  filed  by  defendant 590 

§  1673.   Notice  of  pendency  of  action  by  defend- 
ant   590 

11.   Effect  of  notice  of  pendency   59i 

§  1671.   Effect  of  notice 59i 

§1685.   Liabilityof  purchaser,  pending  an  action,  591 

III.   When  notice  of  pendency  canceled 59^ 

§  1674.  When  and  how  notice  may  be  canceled..  598 

CHAPTER  XI. 

JUDGMENT  FOR  AND  SALE  OF  REAL  ESTATE. 

Article.  page, 

I.   Judgment  for  sale,  where  to  be  entered 601 

§  1677.   Judgment  to  be  entered  in  county  where 

real  property  is  situated 601 

II.  Sale,  how  advertised  and  conducted 601 

Subd.  I .  The  referee 602 

Rule  79.   Who  may  be  referee 602 

Rule  61.   (Last  sentence)  Selection  of  referee 602 

§  1243.   Security  upon  sale  by  referee 602 

Subd.  2.   Advertising  and  conducting  sale 603 

§  1678.   Sale,  notice  of,  how  conducted 603 

§  1384.   Sale  on  execution,  etc.;  when  and  how 

conducted 603 

§  1434.   Notice    of   sale   of   real    property,    how 

given 604 

Rule  62.   Sale   of   lands  in  the  cities   of    New    York, 
Brooklyn  and   Buffalo  under  judgment  or 

order 604 

Rule  67.   Stay    of    sale    in    partition    or    foreclosure, 

notice 604 

Subd.  3.   Sale,  when  made  in  parcels 611 

Subd.  4.   Sale  in  the  inverse  order  of  alienation 616 

Subd.  5.  Trustees  not  to  purchase 620 

§  1679.   Purchases  by  certain  officers  prohibited; 

penalty   620 


xxiv  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 
III.   Referee's  fees  and  expenses  and  disposition  of  pro- 
ceeds        621 

Subd.  I.   Referee's  fees  and  expenses.    621 

§  3297.   Referee's  fees  upon  sales  of  real  prop- 
erty          621 

§  3307.   Subd.   9.   Sheriff's  fees  on    sale  of   real 

property 621 

Subd.  2.   Disposition  of  proceeds 624 

§  1676.   Upon  sale  of    real   property,   ofificer    to 

pay,  taxes,  etc 624 

IV.   Report  of  sale  and  order  of  confirmation 626 

Rule  30.   (Last  half.)  References  other  than  of  issues, 

etc   627 

§  1244.   Conveyance  to  state  name  of  party 628 

V.   Resale,  when  ordered 632 

VI.   Rights  of  purchasers  and  when  sale  enforced 641 

VII.   Payment  of  moneys  arising  from  sale  into  court  and 

how  paid  out 648 

Rule  180.   (Chancery)   Investment  of  funds  paid  into 

court   648 

Rule  68.    Payment  of   money  into  court;  designation 

of  trust  company,  etc 649 

Rule  69.   Order  for  payment  out  of  court;    what    to 

specify,  etc 649 

VIII.   Passing  title  and  writ  of  assistance 650 

§  1675.  When  and  how  court  may  compel  delivery 
of  possession  of  real  property  to  pur- 
chaser          650 

IX.    Effect  of  judicial  sale. 659 

CHAPTER  XII. 

REAL  ESTATE   ACTIONS,   MISCELLANEOUS   PROVISIONS 

RELATING  TO. 

Article.  page. 

I.   Survey,  when  ordered 660 

§  1682.  When  order  for   survey  may  be  made  . ,  660 

§  1683.   Contents  and  service  of  order 660 

§  1684.   Authority  of  party  under  order 660 

II.  When  infant  may  maintain  action  as  to  real  estate  in 

his  own  name 661 

§  1686.   Infant  may  maintain,  etc.  real  action  in 

his  own  name 661 


ANALYTICAL  TABLE  OF  CONTENTS.  XXV 

Article.  page. 

III.  Joinder  of  actions  and  when  special  proceedings  not 

allowed  as  to  real  estate 662 

§  1687.   Joinder  of  real  actions  with  others 662 

§  1688.   When  special  proceedings  to  recover  real 

property  not  allowed 662 

IV.  When  heir  can   maintain   ejectment  after  default  by 

tenant  for  life 663 

§  1680.   Reversioner,  etc.,  may  bring  action  after 

tenant's  default 663 

CHAPTER  XIII. 

MECHANIC'S  LIENS. 

Article.  page. 

I.   Nature  and  extent  of  the  remedy 664 

II.   By  and  against  whom  and  in  what  cases  lien  acquired,  666 
Laws  1885,  chap.  342,  §  i.   How  and  by  whom 

lien  acquired 666 

Subd.  I.  By  whom  lien  may  be  filed 667 

Subd.  2.  Against  whom  lien  may  be  filed 669 

Subd.  3.  To  what  property  lien  attaches 674 

Subd.  4.  Miscellaneous  provisions  as  to  validity  of  liens,  676 

III.    Notice  of  lien  and  filing     678 

Subd.  I.   Notice  of  lien  and  filing 678 

Laws    1885,    chap.    342,  §  4.     Notice  of   lien; 

filing  and  requisites  of;  notice  upon  owner,  678 

Subd.  2.  Verification  of  lien 682 

IV.   Priority  of  liens  and  rights  of  sub-contractors 684 

Laws  1885,  chap.  342: 

§    5.   Priority  of  liens;    building  contracts  .  ..  684 

§  20.   Sub-contractors  and  priority  among  lien 

holders   685 

V.   Payments  in  advance  and  demand  upon  owner  for 

terms  of  contract 690 

Laws  1885,  chap.  342: 

§    2.   Payment  by  collusion,  etc.  to  avoid  liens,  690 

§    3.   Parties  may  demand  terms  of  contract  .  690 

VI.   Discharge  of  lien 691 

Laws  1885,  chap.  342,  §  24.   Discharge  of  lien,  691- 

VII.   Construction  of  statute  and  repealing  clause 694 

Laws  1885,  chap.  342: 

§  25.   Construction  of  statutes 694 

§  26.   Repealing  clause 694 


XXVI  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 

VIII.   Foreclosure  of  liens 695 

Subd.  I.  When  the  action  lies 695 

Laws  1895,  chap.  342,  §  7.   Action   to  enforce 

lien 695 

Subd.  2.   Limitation  and  continuance  of  lien,  Us  pen- 
dens    697 

Laws  1885,  chap.  342,  §  6.   Continuance  of  lien,  697 

Subd.  3.   Parties   699 

Laws  1885,  chap.  342,  §  17.   Parties  to  action,  699 

Subd.  4.   Pleadings 701 

Subd.  5.   Matters  of  practice 711 

Laws  1885,  chap.  342: 

§    8.   Proceedings  to  enforce  lien 711 

§  14.   Costs  and  disbursements 711 

§  1 8.   Consolidation  of  actions 711 

§  19.   Offer  of  payment 711 

§21.   Priority  of  liens,  how  determined 712 

§22.   Contract  for  payment  in  specific  property  712 

Subd.  6.  Judgment 716 

Laws  1885,  chap.  342: 

§  15.   Personal  judgment 716 

§  16.   Transcript  of  judgment 717 

§  23.   Judgment  for  deficiency 717 

Subd.  7.   Foreclosure  in  courts  not  of  record 722 

Laws  1885,  chap.  342: 

§    9  Jurisdiction;  summons  and  complaint...  722 

§  10.   Service  of  summons  by  publication 722 

§11.  Procedure 722 

§  12.   Trial  of  issues 723 

§  13.   Appeals  from  such  courts 723 

IX.   Liens  against  municipal  property  under  contracts.  . .  723 
Laws  1892,  chap.  629: 
§    I.  AVho    may   acquire    lien;    against    what 

property  lien  to  attach 723 

§    2.   Claim  of  lienor,  contents,   filing 724 

§    3.   Docketing  lien 724 

§    4.   Duration  of  liens;  lis petidens 724 

§    5.   Extent  of  lien 724 

§    6.   Enforcement  and  termination  of  lien. . .  724 

§    7.   Parties;  priorities 724 

§    8.   Judgment;  execution;  appeal 725 

§    9.   Successive  liens;    priority  according  to 

date  of  filing 725 


ANALYTICAL   TABLE   OF   CONTENTS.  XXVll 

Article.  page. 

IX.   Liens  against  municipal  property  under  contracts. . .  723 

§  10.   Consolidation  of  action 725 

§  II.   Costs  in  the  discretion  of  the  court 725 

§  12.   Rights  to  personal  action  not  affected..  725 

§  13.   How  lien  may  be  discharged 725 

§  14.  Term  "  contractor  "  defined 726 

§15.  When  act  to  take  effect;  repealing  clause,  726 

§  16.   Cases  to  which  act  shall  apply 726 

X.   Liens  on  railroads,  oil,  gas  or  water  wells  and  ceme- 
tery structures 734 

Subd.  I.   Liens  on  railroads 734 

Subd.  2.   Liens  against  oil,  gas  or  water  wells 734 

Subd.  3.   Liens  on  grave-stones  and  monuments 734 

CHAPTER  XIV. 

REPLEVIN. 

Article.  page. 

I.   Nature  of  the  action 738 

II.  The  action  when  it  lies,  by  and  against  whom 742 

Subd.  I.  Title  must  be  in  plaintiff 742 

Subd.  2.  When  and  for  what  articles  replevin  lies 748 

§  1692.  When  action  maintained  by  an  assignee,  748 

Subd.  3.  When  action  cannot  be  maintained 755 

§  1690.  When  it  cannot  be  maintained.    755 

§1691.   Id.;  after  judgment  against  the  plaintiff,  755 

Subd.  4.  Against  whom  the  action  can  be  maintained,  759 

Subd.  5.  When  demand  or  tender  necessary 762 

Subd.  6.   Election  of  remedies 766 

III.   Pleadings  and  defences 766 

Subd.  I .   The  complaint 766 

§  1720.  Title,  how  stated  in  pleading 766 

§  1721.  Taking,  etc.;  how  stated  in  complaint..  767 

Subd.  2.  The  answer  and  defences 773 

§  1723.  Answer  of  title  in  third  person.  . 773 

§  1724.  Answer    that    property    was    distrained 

doing  damage 773 

§  1725.    Defendant   may  demand    judgment  for 

return 773 

IV.   Affidavit,  undertaking  and  requisition  to  sheriff 777 

Subd.  I.   The  affidavit 777 

§  1695.   Affidavit    therefor,    before    commence- 
ment of  action 777 


XXviii  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 

IV.   Affidavit,  undertaking  and  requisition  to  sheriff 777 

§  1696.   Id.;  after  commencement  of  action..,.  777 
§  1697.   Id.;  Where  several  chattels  are  to  be  re- 
plevied    778 

§  17 12.  When  agent,  etc.,  may  make  affidavit  for 

replevin 778 

Subd.  2.   The  undertaking 781 

§  1699.   Plaintiff's  undertaking  for  replevin 781 

Subd.  3.   Requisition 784 

§  1694.   Plaintiff  may  require  sheriff  to  replevy..  784 

V.   Duty  of  sheriff 785 

Subd.  I.   How  chattel  to  be  replevied  and  kept 785 

§  1698.   Provision  where  a  part  only  is  replevied,  785 

§  1700.   How  chattel  to  be  replevied 785 

§  1701.   Id.;  how  taken  from  a  building,  etc....  785 

§1702.   Replevied  chattel;  how  kept,  etc 785 

Subd.  2.   Delivery  of  chattel  by  sheriff 788 

§  1706.  When  and  to  whom  sheriff  must  deliver 

chattel 788 

§  1707.   Penalty  for  wrong  delivery  by  sheriff.  . .  788 

§  1708.   Undertaking;  to  whom  delivered 789 

Subd.  3.   Sheriff  to  make  return 790 

§1715.   Return,  etc.,  by  sheriff 790 

§  1716.   Id. ;  how  compelled 790 

VI.   Proceedings  by  defendant    790 

§  i7°3-  When  defendant  may  except  to  sureties; 

proceedings  thereupon 790 

§  1704.  When    defendant    may  reclaim    chattel; 

proceedings  thereupon 791 

§  1705.   Sureties,  when  and  how  to  justify 791 

VII.  Claim  of  title  by  third  person 794 

§  1709.   Claim  of  title  by  third  person;  proceed- 
ings thereupon . 794 

§  1 7 10.   Action  against  sheriff  upon  such  claim. .  794 

§1711.   Indemnity  to  sheriff  against  such  action,  795 

VIII.   Practice  peculiar  to  replevin 797 

Subd.  I.   Jurisdiction  before  summons  served 797 

§  1693.   Jurisdiction,    etc.,    when    replevin    pre- 
cedes summons 797 

Subd.  2.   Uniting     causes     of     action    and     reviving 

action . 797 

§  1689.  Joinder  of  action  with  others 797 

§  1736.   Abatement  and  revival  of  action 797 


ANALYTICAL  TABLE  OF  CONTENTS.  XXIX 

Article.  page. 

VIII.   Practice  peculiar  to  replevin 797 

Subd.  3.   Replevin  where  order  of  arrest  granted 798 

§  17 14.   Replevin  where  order  of  arrest  has  been 

granted 79^ 

Subd.  4.   Subsequent  replevin 799 

§  17 13.   Second    and   subsequent  replevin;    pro- 
ceedings thereupon 799 

Subd.  5.   Abandonment  of  claim  to  part  of  property  by 

plaintiff 800 

§  17 19.  When  and  how  plaintiff  may  abandon  his 

claim  as  to  part 800 

Subd.  6.   Action  not  affected  though  no  replevin 800 

§  17 18.   Action  not  affected  by  failure  to  replevy,  800 

Subd.  7.   General  matters  of  practice 800 

IX.   Evidence 804 

X.   Damages  recoverable  and  form  of  verdict 808 

§  1722.  Damages  when  chattel  injured,  etc.,  by 

defendant 808 

§  1726.   Verdict,  etc.,  what  to  state 808 

§  1727.   Substitute  in  certain  cases  for  finding  as 

to  value 809 

§  1728.  Verdict,  etc.,  for  part  of  several  chattels, 

j  udgment  thereupon 809 

§1729.   Damages,  how  ascertained  on  default. . ,  809 

XI.   Contents  of  judgment 815 

§  1717.   Replevin  papers  to  be  made  part  of  judg- 
ment-roll, etc 815 

§  1730.   Final  judgment;  docketing  the  same, . .  815 

XII.   Execution     818 

§1731.   Execution,  contents  thereof 818 

§  1732.   Id.;  sheriff's  power  to  take  chattel 818 

XIII.   Action  on  undertaking,  when  maintainable 820 

§  1733.   Action  on  undertaking,  when  maintain- 
able   820 

§  1734.   Sheriff's  return,  evidence  therein 820 

§  1735.   Injury,  etc.,  no  defence 820 

XIV.  Costs  823 

CHAPTER  XV. 

FORECLOSE  A  LIEN  UPON  A  CHATTEL,  ACTION  TO. 

PAGE. 

§  1737-   Action;  when  and  in  what  courts  main- 
tainable    826 


XXX  ANALYTICAL  TABLE  OF  CONTENTS. 

PAGE. 

§  1738.  Warrant  to  seize   chattel;    proceedings 

thereupon 826 

§  1739-   Judgment 826 

§  1740.   Action  in  inferior  court 826 

§  1741.   Application  of  this  article 826 

CHAPTER  XVI. 

VOID  OR  VOIDABLE  MARRIAGE,  ACTION  TO  ANNUL. 

Article.  page. 

I.  General  provisions  as  to  action 836 

§  1742.  Action   by  woman,    married    under  six- 
teen, to  annul  marriage 836 

§  1743.   In  what  other  cases   marriage   may  be 

annulled 837 

§  1755.   How  next  friend  of  infant,  lunatic,  etc., 

allowed  to  sue,  etc 837 

Laws  1896,  chap.  272: 

§  2.   Incestuous  and  void  marriages 837 

§  3.   Void  marriages 837 

§  4.   Voidable  marriages 838 

II.   Marriage  annulled  on  ground  of  infancy 839 

§  1744.  Action  when  party  was  under  the  age  of 

consent 839 

III.  When  voidable,  former  husband  or  wife  living 840 

§  1745.   Id. ;  when  former  husband  or  wife  living,  840 

IV.  When  annulled  for  idiocy  or  lunacy 846 

§  1746.   Id. ;  when  party  was  an  idiot 846 

§  1747.   Id. ;  when  party  was  a  lunatic. . 846 

§  1748.   Action  by  next  friend  of  idiot  or  lunatic,  846 

§  1749.   Issue;  when  entitled  to  succeed,  etc  ...  846 

V.  When  voidable  for  force,  duress  or  fraud 847 

§  1750.   Action   on   the  ground  of  force,  fraud, 

etc 847 

§  1751.   Custody,   maintenance,  etc.,  of   issue  of 

such  a  marriage 848 

VI.   Action  on  ground  of  physical  incapacity 851 

§  1752.  Action  on  the  ground  of  physical  inca- 
pacity    85 1 

VII.   Order  for  jury  trial  and  judgment,  how  obtained  and 

effect  of  judgment 853 

§  ^753-  Certain  proceedings  regulated  in  action 

to  annul  marriage 853 


ANALYTICAL  TABLE  OF  CONTENTS.  XXXI 

Article.  page. 
VII.   Order  for  jury  trial  and  judgment,  how  obtained  and 

effect  of  judgment 853 

§  1754-   Judgment  annulling  a  marriage;  how  far 

conclusive 853 

Rule  73.   Judgment  by  default,  when  granted,  etc....  853 

CHAPTER  XVII. 

DIVORCE. 

Article.  page. 

I.   When  and  how  action  maintained 856 

§  1756.   In  what  cases  action  maybe  maintained,  856 
§  1758.  When  divorce  denied,  although  adultery 

proved 856 

II.   Complaint 861 

Rule  72.   (In  part.)  Complaint  in  divorce,  averments  in,  861 

Rule  75.   Questioning  legitimacy  of  children 862 

III.  The  issues  and  trial 865 

Subd.  I .    Default 865 

Rule  72.   (Last  part.)  Failure  of  defendant  to  answer,  865 

Subd.  2.   Answer  and  framing  issues 865 

§  1757.  Answer;    mode    of    trial;    judgment    by 

default 865 

Rule  74.   Answer  in  action  for  divorce ;  trial 865 

Rule  31.   (In  part.)  Settling  of  issues;  motion  for  jury 

trial 869 

§  969.  What  issues  are  triable  by  the  court 869 

§  970.  Order  for  trial  by  jury  of  specific  questions 

of  fact,  when  of  right 869 

Subd.  3.   Evidence 870 

§  831.  When   husband  and   wife  not  competent 

witnesses;  when  competent 875 

Subd.  4.   Practice  generally 884 

Subd.  5.   Trial 889 

Subd.  6.   Costs  and  appeal 892 

IV.  Judgment  and  its  effect 893 

Subd.  I.   Judgment,  how  obtained 893 

§  1229.   In  matrimonial  causes,  judgment  can  be 

rendered  only  by  the  court 894 

Subd.  2.   Effect  of  judgment 902 

§  1759.   Regulations    when   action    brought    by 

wife   902 

§  1760.   Id.;  when  action  brought  by  husband..  903 


xxxii  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 

IV.   Judgment  and  its  effect 893. 

Subd.  3.   Vacating  judgment 911 

V.   Re-marriage,  when  allowed 912 

§  1761.   Marriage  after  divorce  for  adultery 912 

Laws  1879,  chap.  321,  §  49.  When    marriage  al- 
lowed after  divorce 912 


CHAPTER  XVIII. 

SEPARATION,  ACTION  FOR. 

Article.  page. 

I.   For  what  causes  and  in  what  cases  action  maintained,  914 

Subd.  I.   Jurisdiction 914 

§  1762.   For  what   causes  action   may  be  main- 
tained    914 

§  1763.   Id. ;  in  what  cases 914 

Subd.  2.  Cruelty  and  inhuman  treatment 916 

Subd.  3.   Abandonment  and  failure  to  support 919 

Subd.  4.   Condonation   922 

II.   Pleadings  and  trial 923 

Subd.  I.  Complaint 923 

§  1764.   Requisites  of  complaint 923 

Subd.  2.  Answer 927 

§  1765.   Defendant  may  set  up  plaintiff's  miscon- 
duct   927 

Subd.  3.   Trial 927 

Subd.  4.   Evidence 928 

III.   Judgment,  what  to  contain  and  when  revoked 930 

§  1766.  Support,  maintenance,  etc.,  of  wife  and 

children 930 

§1767.   Judgment  for  separation  may  be  revoked,  930 


CHAPTER  XIX. 

NULLITY,  DIVORCE    AND   SEPARATION,   PROVISIONS 

APPLICABLE  TO. 

Article.  page. 

I.   Residence   of   married    woman   and    jurisdiction   of 

court 937 

§  1768.   Married  woman   deemed    a   resident   in 

certain  cases 937 


ANALYTICAL   TABLE   OF   CONTENTS.  XXxiii 

.  PAGE. 

Article 

II.   Indorsement  of  process  and  proof  of  service 938 

§  1774-   Regulations     respecting     judgment    by 

default 938 

Rule  18.   Service  of  summons  by  person  other  than 
sheriff,    affidavit  of,   what    to    contain  in 

divorce  cases 939 

III.   Answer  and  counterclaim 94° 

§  1770.   What  is  deemed  a  counterclaim 940 

Rule  74.   Answer;   trial 94° 

IV.   Judgment   944 

Subd.  I.  How  judgment  to  be  taken  by  default 944 

Rule  72.   (In    part.)    Reference  on  default;    proof    of 
service  of  summons  and  complaint;  failure 

of  defendant  to  answer 944 

Rule  76.   Judgment  not  to  be  by  default;  copy  plead- 
ings or  testimony  not  to  be  furnished;  no 
judgment  to  be  entered  except  by  court. .       944 
Subd.  2.   Judgment,  how  modified 945 

V.  Alimony  and  counsel  fees _ 946 

Subd.  I.  hXxmony pendente  lite  in   actions   for  divorce 

or  separation 946 

§  1769.  Alimony,  expenses  of  action  and  costs; 

how  awarded 946 

Subd.  2.  Alimony  pendente  lite    in    actions    to    annul 

a  marriage 959 

Subd.  3.  Counsel  fees 961 

Subd    4    Practice  on  motion  for  alimony  and  counsel 

fees 96s 

Subd.  5.   Alimony  in  final  judgment 97° 

VI.  Provisions  for  custody  of  children  in  judgment 972 

§  177 1.   Custody  and    maintenance   of  children, 

and  support  of  plaintiff 972 

VII.   Judgment  for  alimony,  how  enforced 974 

§  1772.   Support,  maintenance,  etc.,  of  wife  and 

children 974 

§  1773.   Id.;  when   enforced   by  punishment   for 

contempt   975 


xxxiv        ANALYTICAL  TABLE  (JF  CONTENTS. 

CHAPTER  XX. 

CORPORATION,  ACTIONS  RELATING  TO. 

Article.  page. 

I.  Provisions    relating   to    practice    in    actions    by    or 

against  corporations 990 

Subd.  I.   Complaint  in  actions  by  or  against  corpora- 
tions          990 

§  1775-   Complaint  in  actions  by  or  against  cor- 
porations          990 

Subd.  2.   When  foreign  corporation   may  sue  and  be 

sued 996 

§  1779-  When  foreign  corporation  may  sue 996 

§  1780.  When  foreign  corporation  may  be  sued,       996 
Subd.  3.  Waiver  of  misnomer  and  proof  of  corporate 

existence 1009 

§  1776.  When  proof  of  corporate  existence  un- 
necessary        1009 

I  1777.   Misnomer,  when  waived 1009 

Subd.  4.   Restrictions    upon    defence   by    corporation 

in  suit  on  note 1012 

§  1778.  Action   against   a    corporation    upon    a 

note,  etc 1012 

II.  Judicial  supervision  of  a  corporation  and  of  the  offi- 

cers and  members  therof 1014 

§  1781.  Action  against  directors,  etc.,  of  a  cor- 
poration for  misconduct 1014 

^  1782.   By  whom  action  to  be  brought 1015 

§  1783.  This  article,  how  construed 1015 

Subd.  I.   Action  by  attorney-general 1015 

Subd.  2.   Action  by  creditor,  stockholder  or  trustee..  1018 
III.  Action  for  dissolution  of  corporation  and  to  enforce 

liability  of  officers  and  stockholders 1036 

Subd.  I.  Action  by  judgment-creditor  for  sequestra- 
tion    1036 

§  1784.  Action  by  judgment-creditor  for  seques- 
tration, etc 1036 

Subd.  2.   Action  to  dissolve  corporation 1043 

§1796.   Effect  of  this  article  limited 1043 

§1785.   Action  to  dissolve  a  corporation 1043 

§1786.   Id. ;  by  whom  to  be  brought 1043 

Subd.  3.  Temporary  injunction io54 

§1787.   Temporary  injunction 1054 


ANALYTICAL  TABLE  OF  CONTENTS.  XXXV 

Article.  page. 

III.  Action  for  dissolution  of  corporation  and  to  enforce 

liability  of  officers  and  stockholders 1036 

Subd.  4.  Receiver 1056 

§  1788.  Receiver  may  be  appointed;  permanent 
and  temporary  receiver;  powers,  etc., 

of  temporary  receiver 1056 

§  1789.   Additional   powers   and    duties    may   be 

conferred  upon  temporary  receiver. . .  1056 
Subd.  5.   When  action  maintained  against  stockholders 

or  officers 1056 

§1790.   Making  stockholders,  etc.,  parties 1056 

§  1791-  When   separate  action   may  be   brought 

against  them 1057 

§1792.   Proceedings  in  either  action 1057 

Subd.  6.   Judgment  and  its  provisions 1058 

§  1793-   Judgment;    property  of  corporation   to 

be  distributed 1058 

§1794.   Id. ;  stock  subscriptions  to  be  recovered,  1058 
§1795.   Id.;  as    to    liabilities    of   directors    and 

stockholders 1058 

IV.  Action  to  annul  a  corporation 1065 

Subd.  I.  Action  when  and  how  brought  and  tried. . . .  1065 

§  1797.   Action  by  attorney-general,  when  legis- 
lature directs 1065 

§  1798.   Id. ;  by  leave  of  court 1065 

§  1799.   Leave;  when  and  how  granted 1066 

§  1800.  Action  triable  by  jury 1066 

Subd.  2.   Judgment,  injunction  and  receiver 1075 

§  1801.   Judgment ...    1075 

§  1802.   Injunction  may  issue 1075 

§  1803.   Copy  of  judgment-roll  to  be  filed   and 

published 1076 

V.   Provisions  applicable  to  actions  under  this  chapter. .  1076 

Subd.  I.   Exceptions  to  operation  of  article 1076 

§  1804.   Certain  corporations  excepted  from  cer- 
tain articles  of  this  title 1076 

Subd.  2.  When    duty    of    attorney-general    to    bring 

action io77 

§  1808.  When      attorney-general      must      bring 

action . , 1077 

Subd.  3.   Creditors  may  be  brought  in 1079 

§  1807.  Creditors  may  be  brought  in 1079 

Subd.  4.   Injunction  and  its  requisites 1080 


XXXvi        ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 
V.   Provisions  applicable  to  actions  under  this  chapter. .  1076 
§  1806.   Injunction  staying  actions  by  creditors,  1080 
§  1809.   Requisites  of  injunction  against  corpora- 
tions in  certain  cases 1080 

Subd.  5.   Miscellaneous  practice  regulations 1084 

§  1805.   Officers  and  agents  may  be  compelled  to 

testify  1084 

§  181 1.  Requisites  of  judicial   suspension  or  re- 
moval of  an  officer   1084 

§  1812.  Application  of  the  last  three  sections. . .  1084 
§  1813.   In  action  against    stockholders,   misno- 
mer, etc.  not  available 1085 

Subd.  6.   Receivers    1086 

§  1810.   Requisites  of  order  appointing  receiver 

in  certain  cases    1086 


CHAPTER  XXI. 

RECEIVERS  OF  CORPORATIONS. 

Article.  page. 

I.   Statutory  provisions  as  to  receivers  of  corporations,  1087 
§1788.   Receiver  may  be  appointed.     Permanent 
and  temporary  receiver;  powers,  etc., 

of  temporary  receiver 1088 

§  1789.  Additional   powers   and    duties   may    be 

conferred  upon  temporary  receiver. , .  1089 

§  1 80 1.   Judgment 1089 

§  1810.   Requisites  of  order  appointing  receiver 

in  certain  cases 1089 

§  2423.   Presentation  of  petition,  etc. ;  order. . . .  1090 

§  2429.   Final  order 1091 

§  2430.   Certain  sales,  etc.,  void 1091 

Revised  Statutes,  tit.  4,  chap.  8,  pt.  3: 

§  42.   Receiver's     general     powers     and    du- 
ties     1158,  1091 

§66.   Receivers;    security. 1128,  1092 

§  67.  Their  rights , 1093 

§  68.   Their  authority 1093 

§  69.   To  prosecute  for  arrears  of  stock 1093 

§  70.   To  give  notice  of  appointment,  etc 1093 

§71.   Certain  sales  and  transfers  void 1093 

§72.   Debtors  to  account  to  receivers 1093 


ANALYTICAL   TABLE    OF    CONTENTS.  XXXvii 

Article.  page. 

I.   Statutor}-  provisions  as  to  receivers  of  corporations,  1087 

§  73.   Referring  controversies 1093 

§  74.   Meetings  of  creditors  to  be  called,  etc.,  1094 

§  75.   Subsisting  contracts 1094 

§76.   Receiver's  commissions 1094,  1156 

§  77.   Receivers  to  retain  certain  sums 1094 

§  78.   Receivers  to  meet  suits 1094 

§  79.   Order  of  payment  of  debts 1094 

§  80.   Second  and  final  dividend 1094 

§81.   Proceedings  therein     1095 

P  82.   Debts  not  exhibited 1095 

§  83.   Surplus  to  stockholders 1095 

§  84.   Money  retained 1095 

§  85.   Control  of  receivers 1095 

§  86.   Account  by  them 1095 

§  87.   Previous  notice  thereof 1095 

§  88.   Master's  duty 1096 

§  89.   Settlement  of  its  accounts;  its  effect. . .  1096 
Revised  Statutes,  pt.   11,  chap.  5,  tit.  i,  art.  8: 

§     I.   Assignees,   etc.,  trustees  for    benefit   of 

creditors 1096 

§    2.   One  trustee,  etc 1096 

§    3.   Powers  of  trustees  where  more  than  one,  1096 
§    4.   Survivor;    property    in     the    hands    of 

trustee  dying 1097 

§    5.   Trustees  to  take  oath 1097 

§    6.   Trustees  vested  with  debtor's  property,  1097 

§    7.   Their  powers 1097 

§    8.   Notice  to  be  given. .  , 1098 

§    9.   Time  and  manner  of  publishing  notice..  1098 

§  10.   May  sue  notwithstanding  notice 1098 

§  II.   Persons  concealing  property  or  debts  to 

forfeit  double,  etc 1098 

§  12.   When  debtor,  etc.,  may  be  brought  up  to 

be  examined 1099 

§  13.   Particulars  of  examination i°99 

§  14.   Person  refusing  to  be  sworn,  etc.,  to  be 

committed 1099 

§  15.   Proceedings    in    case    he    brings    habeas 

corpus i°99 

§  16.   Sheriff  suffering  such  person  to  escape, 

how  punished i°99 

§  17.   Persons  answering  not  liable  to  penalty,  iioo 


XXXviii  ANALYTICAL   TABLE   OF    CONTENTS. 

Article.  page. 

1.   Statutory  provisions  as  to  receivers  of  corporations,  1087 
§  18.   Persons  discovering  effects   entitled   to 

premium 1 100 

§  19.   Controversies    may    be    referred    to    re- 
ferees    I  lOO 

§  20.   Notice  of  application  for  appointment  of 

referees i  lOo 

§  21.  Referees  to  be  nominated iioo 

§  22.  Referee  may  issue  commission 1 100 

§23.   Selection  to  be  certified,  and  rule  entered,  iioo 

§  24.   Powers,  etc.,  of  referees iioi 

§  25.   Report  of  referees i  lor 

§26.   Trustees  to  convert  estate  into  money; 

accounts,  etc i  loi 

§  27.  When  and  how  to  call  general  meeting,  iioi 

§  28.   Proceedings  at  such  meeting i  loi 

§  29.   Disbursements  and  commissions iioi 

§32.   United  States,  etc.,  to  be  first  paid iioi 

833.   Remainder,  how  distributed iioi 

§  34.   Debts  due  from  debtor,  as  guardian,  etc,  1102 

§  35.   Creditors  whose  debts  are  not  due 1102 

§  36.   Mutual  credits,  etc.,  when  set  off 1102 

§37.   Set-offs  of  demand  purchased 1102 

§  38.   Suits  pending;  proportion  to  be  retained,  1 102 

§39.   Penalties  recovered  by  trustees 1102 

§  40.   If  whole  estate  not  distributed  on  first 

dividend,  yearly  dividends  to  be  made,  1 102 
§  41.   Creditors   omitting  to  deliver  accounts 

on  first  dividend,  etc 1 103 

§  42.   Unclaimed  dividends 1 103 

§  43.   Surplus  to  be  paid  to  debtor 1 103 

§  44.  Allowance  to  certain  debtors 1 103 

I  45.   Trustees  to  render  account  on  oath  ....  1103 
§  46.  Trustees  subject  to  order  of  courts;  may 

be  removed 1 103 

§  47.   Proceedings  in  common  pleas  removable 

into  Supreme  Court 1 103 

§  48.   If  trustees  be  removed,  etc.,  new  trustees 

may  be  appointed     1 104 

§  49.  Trustee  wishing  to  renounce,  may  obtain 

order  to  show  cause 1 104 

§  50.   Id. ;  application  to  whom  made 1 104 


I 


ANALYTICAL  TABLE  OF  CONTENTS.        XXXIX 

A  X,  PAGE. 

I.   Statutory  provisions  as  to  receivers  of  corporations,  1087 
§51.   Application   to   be   accompanied   by  ac- 
count    ii°4 

§  52.   Affidavit  to  be  annexed i io4 

§  53.   Notice  to  show  cause i  io4 

§  54.   Notice  to  be  published i  io4 

§55.   Hearing ^^°5 

§  56.   When   trustee    may    be    allowed    to    re- 
nounce   ^^°5 

§  57.  Trustee  to  execute  assignment 1105 

§  58.   Effect  of  assignment,  powers,  etc. ,  of  new 

assignee    ^  ^°5 

§  59.  When    order   to    be    made    discharging 

trustee i^°5 

§  60.   Trustee  thereupon  discharged,  subject  to 

prior  liabilities 1 1°5 

§  61.   Assignment,  petition,  etc.,  to  be  recorded 

and  filed i^°5 

§  62.   Expenses  to  be  paid  by  trustee 1 106 

§  713  of  the  Code.     Receiver,  when  appointed..      1106 
§  714.   Notice  of  application  for  appointment  of 

receiver ;  when  necessary 1 106 

I  715.   Security "°^ 

§716.   Certain  receivers  may  hold  real  property,      1107 

Laws  1858,  chap.  314: 

§  I.   Trustees,  etc.,  may  impeach  assignments,      1107 

§  2.  And  have  actions  against  offenders 1107 

Laws  1880,  chap.  537: 

§  I.   Copy   report  to   be  served   on   attorney- 
general ii°S 

§  2.   Motion    by    attorney-general    to    compel 

making  report,  etc 1 108 

§  3.   Attorney-general  may  move  for  order  re- 
moving receiver,  etc ii°8 

§  4.   Notices,  etc.,  may  be  served  on  attorney- 
general  I  i°S 

Laws  1883,  chap.  378: 

§  I.  Where  application  for   appointment  of  a 

receiver  to  be  made 1121,  1109 

§  2.   Compensation   of    receivers;   division    in 

certain  cases ii55)  1 1°9 

§3.   Order  to  designate  place  of  deposit,   11 24,  1109 


xl  ANALYTICAL  TABLE  OF  CONTENTS 

Article.  page. 

I.   Statutory  provisions  as  to  receivers  of  corporations,      1087 
§    4.   Receiver  to  report  in  detail  receipts  and 

expenses  every  six  montiis nog 

§    5.   Intervenors     to     pay     their     own      ex- 
penses     ii55>  mo 

§    6.   Affairs  to  be  closed  up  within  one  year,      mo 
§    7.  Attorney-general  may  apply  to  have  re- 

'  ceiver  removed,  etc.    iiio 

§    8.   Copies  of  all  papers  to  be  served  on  at- 
torney-general     1 12 1,  1 1 10 

§    9.   Where  applications  to  be  made...      1122,  im 

§10.   Preference  on  calendars 1122,1111 

§11.   Repeal iiii 

Laws  1884,  chap.  285,  §  i.  AH  property,  etc.,  to 
vest  in  receiver  except  as  to  insurance  com- 
panies        nil 

Laws  1885,  chap.  376,  §  i.  Wages  of  operatives 

preferred  to  other  debts im 

Rule  80.   Time  and  application  for  place  of  appoint- 
ment of  receiver;  effect  on  subsequent  suits  ..    1112,  1121 
IL   Jurisdiction  to  appoint  receiver  under  the  decisions 

and  when  exercised 1112 

Subd.  I.   Jurisdiction  of  court  to  appoint  receiver.. . .      1112 

vSubd.  2.  When  court  will  appoint  receiver mS 

IIL   Appointment  and  qualification  of  receiver 1121 

Subd.  I.   Proceedings  to  obtain  appointment 1121 

Rule  80.   Time  and   place  of  application  for  appoint- 
ment   of    receiver;    effect    on    subsequent 

suits ;  removal  of 1112,   1121 

Laws  1883,  chap.  378: 

§     I.  Where  application  for  appointment  of  a 

receiver  to  be  made 1109,  1121 

§    3.   Order  to  designate  place  of  deposit,    1109,  1124 
'                              §    8.  Copies  of  all  papers  to  be  served  on  at- 
torney-general     1 1 10,  1121 

I    9.  Where  applications  to  be  made  ... .    mi,  1122 

§10.   Preference  on  calendars 1111,1122 

Subd.  2.  Who  may  be  appointed 1128 

Revised  Statutes,  9th  ed.,   pt.  3,  chap.  8,  tit.  4, 

§66.   Receiver;  security 1092,  1128 

§  90  of  the  Code.    Clerk  of  New  York  or  Kings 

not  to  be  referee,  receiver,  etc 1 1 28 

Subd.  3.   Receiver's  bond  and  liability 1129 


ANALYTICAL  TABLE  OF  CONTENTS.  xH 

Article.  page. 

III.  Appointment  and  qualification  of  receiver 1118 

§  66  of  Revised  Statutes,  as  in  Subd.  2 1092,  1 129 

IV.  Rights,  powers  and  duties  of  receiver 1131 

Subd.  I.  Title  of  receiver  to  property 1131 

Laws  1884,  chap.  285 : 

§  I.   All  property,  etc.,  to  vest  in  receiver,  ex- 
cept as  to  insurance  companies. . .    1 11 1,  1 131 
§  2.   Transfer  of  security  deposits  to  receiver; 

proceedings  as  to  foreign  companies  ..      1131 

Subd.  2.   Powers,  duties  and  liabilities  of  receiver 1135 

Rule  81.   Power  of  receiver  to  employ  counsel 1153 

V.   Discharge  of  receiver ii54 

Subd.  I .  Removal  of  receiver 1 154 

Laws  1883,  chap.  378,  §  7-  Attorney-general  may 

apply  to  have  receiver  removed,  etc 1 1  lo,  1 154 

Subd.  2.   Compensation  of  receiver 1155 

Laws  1883,  chap.  378: 

§  2.   Compensation   of    receivers;    division    in 

certain  cases 1 109>  1 155 

§  5.   Interveners     to      pay      their      own     ex- 
penses      1 1 10,  1 155 

Revised    Statutes,    §    76,    p.    2401.     Receivers' 

commissions 1094?  ii5^ 

Subd.  3.   Accounting  by  receiver 1158 

Revised  Statutes,  §  42,  p.  2396.  Receiver's  gen- 
eral powers  and  duties 1091,  1 158 

Subd.  4.   Effect  of  discharge  of  receiver 1161 

VI.   Precedents  relating  to  receivership  of  corporation  . .      ii6r 

CHAPTER  XXII. 

EXECUTOR  OR  ADMINISTRATOR,   ACTION  BY  OR 

AGAINST. 

Article.  page. 

I.  Action,   how  brought  and    conducted,  and    effect  of 

judgment 1189 

Subd.  I.  When  action   proper   in   representative   and 

when  in  individual  capacity 1 189 

§  1814.   Action,    etc.,  by  and   against   executor, 
etc.,  to  be  brought  in  representative 

capacity 1 189 

Subd.  2.  When   personal    and    representative   actions 

joined 1201 


xlii  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 
I.  Action,  how  brought  and  conducted,  and  effect  of 

judgment 1189 

§  1815.  When  personal  and  representative  causes 

of  action  may  be  joined 1201 

Subd.  3.  When    actions    survive  and   what   abate    by 

death 1 203 

Revised  Statutes,  9th  ed.,  p.  1907: 

§     I .   Action  for  wrongs 1 203 

§    2.   Preceding  section  quaUfied 1203 

§11.   Executors  of  executors 1 203 

§  17.   Executor  of  their  own  wrong 1203 

§  18.   Rights,   etc.,   of  adminstrators    de   bonis 

non 1203 

Subd.  4.   Powers  of  executor  of  an  executor  and  exe- 
cutor in  his  own  wrong 1212 

Subd.  5.   Regulations  as  to  parties  and  practice 12 13 

§  1816.  When  separate  dockets  and  executions,  12 13 
§  1817.   Regulations,   when  some  of  the  execu- 
tors, etc.,  are  not  summoned 1213 

§  1818.   Executors  who  have  not  qualified,   not 

necessary  parties ..  1213 

§  1824.  Want  of  assets  not  to  be  pleaded  by  ex- 
ecutor, etc 1213 

Subd.  6.   Pleadings 1215 

II.   Action  by  legatee  against  executor  and  its  effect 12 18 

§1819.   Action  by  legatee,  etc.,  against  executor, 

etc 1218 

§1820.   Id.;  by  infant;  guardian's  bond 12 18 

§  182 1.  When  action  barred  by  judgment  against 

heir,   etc 1218 

III.  Limitation  of  action  by  creditor  on  rejected  claim. . .  1222 

§  1822.   Limitation  of  action  by  creditor  on  claim 

rejected,  etc 1222 

§  2718.  Ascertainment  of  debts 1222 

IV.  Judgment  and  execution  against  executors 1227 

§  1823.   Decedent's  real  property  not  bound  by 

judgment  against  executor,  etc 1227 

§  1825.  Leave  to  issue  execution  against  execu- 
tor, etc 1227 

§  1826.   Id.;  how  procured;  order;  and  contents 

thereof 1227 

§1827.  Security  may  be  required  from  a  legatee,  1228 


ANALYTICAL   TABLE   OF   CONTENTS.  xliii 

Article.  page. 

V.   Miscellaneous  practice  regulations 1232 

§1828.  Actions,  etc.,  when  not  to  abate 1232 

§  1829.   Execution  on  former  judgment 1232 

§  1830.   Action  against  executor,  etc.,  who  has 

been  superseded 1232 

§1831.   False  pleading  by  executor,  etc 1232 

§1832.  When  inventory  may  be  contradicted. . .  1232 

§  1833.   Liability  for  uncollected  demands 1233 

§  1834.   The  last  two  sections  qualified 1233 

§  1376.   Execution    after     death    of     judgment- 
creditor  1 233 

VI.  Costs  in  actions  against  executor  or  administrator. . .  1235 

§  1835.   Costs;  how  awarded 1235 

§  1836.   Id. ;  when  awarded 1235 

§  3246.   Order  for  costs  personally  by  or  aganist 

executors  or  administrator 1245 

CHAPTER  XXIII. 

CREDITOR     AGAINST     HIS     DEBTOR'S    NEXT     OF  KIN, 

LEGATEE,   HEIR  OR  DEVISEE,   ACTION  BY. 
Article. 

I.   Action  against  next  of  kin,  legatees,  etc 1247 

§  1837.   When    action    lies  against  next  of   kin, 

legatees,  etc 1247 

§  1838.   Action  may  be  joint  or  several 1248 

§  1839.   ^^  joint  action,  recovery  to  be  appor- 
tioned     1248 

§  1840.   Recovery  in  a  several  action 1248 

§  1841.   Requisites    to    recovery    in    an     action 

against  legatee 1 248 

§  1842.   Id.;  in  action  against  a  preferred  lega- 
tee     1248 

II.  When  action  lies  against  heirs  and  devisees 1252 

§  1843.   Liability  of  heirs  and  devisees 1252 

§  1844.   When  action  therefor  may  be  brought. .  1252 

§1845.   Eifect  of  application  to  sell  real  property,  1253 

§1846.   Action  must  be  joint 1253 

§1847.   Recovery  to  be  apportioned 1253 

§  1848.    Requisites  to  recovery  against  heirs....  1253 

§  1849.    ^^-  ■'  against  devisees 1253 

III.   Regulations  peculiar  to  such  actions 1261 

§  1850.    Deductions  for  prior  recoveries   1261 


Xliv  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 

111.   Regulations  peculiar  to  such  actions 1261 

§  185 1.  Complaint  to  describe  land  descended, 

etc 1261 

§  1252.   Judgment;  when  to  be  satisfied  out  of 

land   1261 

§  1853.   Id. ;  when  not  a  lien  on  land  aliened. . .  1261 

§  1854.   How  judgment  taken,  when  land  aliened,  1262 
§  1855.   Classification   of  debts,   to  be   enforced 

under  this  article 1262 

§  1856.   Defence,    by  reason    of   other    prior    or 

equal  claims 1262 

§  1857.   Id. ;  when  such  a  claim  is  paid 1262 

§  1858.  Action  not  suspended  by  infancy 1262 

§  1859.   This    article    not  applicable   where   will 

charges  real  property,  etc 1262 

§  i860.   One  action,  where  same  person  is  heir, 

devisee,  etc 1263 


CHAPTER  XXIV. 

ESTABLISH  OR  IMPEACH  A  WILL,  ACTION  TO. 

Article.  page. 

I.  When  action  will  lie 1265 

§  1861.   When  action  to  establish  a  will  may  be 

brought 1265 

II.   Proof  necessary  to  establish  lost  will 1268 

§  1865.   Proof  of  lost  will  in  certain  cases 1268 

III.  Contents  of  judgment 1270 

§1862.   Judgment,  that  will  be  established 1270- 

§  1863.   Judgment  admitting  the  will  to  probate,  127 1 

§  1864.   Contents  of  judgment,  surrogate's  duty,  1271 

IV.  Action  to  construe  will  and  effect  of  article 127 1 

§  1866.   Action  to  establish,  etc.,  will,  relating  to 

real  property 1 2  7 1 

§  1867.   Retrospective  effect  of  this  article 1271 

V.  Action  to  determine  validity  of  will 1277 

§  2653a.   Determining  validity  of  a  will 1277 


ANALYTICAL  TABLE  OF  CONTENTS.  xlv 

CHAPTER  XXV. 

GENERAL    AND    MISCELLANEOUS    PROVISIONS    RELAT- 
ING TO   ESTATES. 

PAGE. 

§  1868.   Action   by   cliild   born   after  will,  or  by 

witness  to  will 1282 

§  1869.  Receiver,  as  successor  of  surviving  ex- 
ecutor, etc 1282 

§  1870.   Next  of  kin  defined 1283 


CHAPTER  XXVI. 

JUDGMENT  CREDITOR'S  ACTION. 

Article.  page. 

I.  When  action  may  be  maintained 1284 

Subd.  I.   When  action  may  be  maintained 1284 

§3343,  subd.    14.    Term    "judgment  creditor's 

action"  defined 1284 

Subd.  2.  Action  under  Code  provisions 1291 

§  187 1.   When      judgment-creditor     may     bring 

action 1291 

§  1872.   To    what    county    execution    must  have 

issued 1291 

Subd.  3.   Action  in  nature  of  creditor's  bill  by  execu- 
tors and  others   1302 

Laws  1894,  chap.  740,  §  i.  Trustees,  etc.,  may  im- 
peach assignments 1302 

Subd.  4.   Parties  plaintiff 1306 

Subd.  5.   Parties  defendant 1310 

Subd.  6.   Pleadings 1313 

Subd.  7.  What  is  held  to  be  proof  of  fraudulent  intent,  1325 
Subd.  8.   Discovery    and    miscellaneous    matters    of 

practice 1338 

§  1878.   How  discovery  may  be  compelled 1338 

II.  What  property  may  be  reached  by  creditor's  bill  and 

how  applied „ 1341 

§  1873.   What  property  may  be  reached 1341 

§  1874.   Interest  of  judgment-debtor  in  land  con- 
tract may  be  reached 1341 

§  1875.   Id. ;  how  applied 1341 

§  1879.   Application  of  this  article;  what  prop- 
erty cannot  be  reached 1341 


xlvi  ANALYTICAL   TABLE   OF   CONTENTS. 

Article.  page. 

III.   Injunction  and  receiver 1355 

§  1876.   Injunction  may  be  issued 1355 

§  1877.  Receiver  may  be  appointed 1355 

CHAPTER  XXVII. 

PRIVATE  PERSON  UPON  AN  OFFICIAL  BOND,  ACTION  BY. 

PAGE. 

§  1880.   Application    for    leave    to    sue    sheriff's 

bond  ;  proof  required 1358 

§  1881.  Order  granting  leave ;  action  thereupon,  1358 

§  1882.   Successive  actions 1358 

§1883.   Indorsement  upon  execution 1358 

§  1884.  Collection  of  execution;  when  a  defence 

to  subsequent  action 1359 

§  1885.  When  claimants  entitled  to  ratable  dis- 
tribution   1359 

§  1886.  Action  upon  a  surrogate's  bond 1359 

§  1887.  Action  upon  a  county  treasurer's  bond..  1359 
§  1888.  Actions  upon  official  bonds  of  other  offi- 
cers   1359 

§  1889.   Actions,  etc.,  under  the  last  three  sec- 
tions regulated 1360 

§  1890.   Receivers,  etc.,  deemed  public  officers. .  1360 
§  1891.   Demand  of  money;  when  necessary  be- 
fore application 1360 

§  1892.   Application  may  be  made  ex  parte 1360 

CHAPTER  XXVIII. 

PRIVATE  PERSON  FOR  A  PENALTY  OR  FORFEITURE, 

ACTION   BY. 

Article.  page. 

I.   By  whom  action  maintained  and  in  what  manner....  1369 

§  1893.  Action  by  person  specially  aggrieved  ...  1369 

§  1894.  Action  by  common  informer 1369 

II.   Summons,  how  indorsed  and  served  . 137 1 

§  1897.   Indorsement  upon  summons 1371 

§  1895.   Service  of  summons 1371 

III.  Pleadings 1374 

IV.  When  recovery  had  and  to  what  extent 1376 

§  1896.  When  action  not  barred  by  a  collusive 

recovery 1376 

§  1898.  AVhen  part  of  a  penalty  may  be  recovered,  1376 


ANALYTICAL   TABLE   OF   CONTENTS.  xlvii 

CHAPTER  XXIX. 

CERTAIN   ACTIONS    TO    RECOVER    DAMAGES  FOR 

WRONGS. 

Article.  page. 

I.   Civil  and  criminal  prosecutions  not  merged 1377 

§  1899.   Civil    and     criminal     prosecutions    not 

merged   i377 

II.   Action  for  suing  in  the  name  of  another 1378 

g  1900.   Actionfor  suing,  etc.,  in  name  of  another; 

made  also  a  misdemeanor 1378 

§  1901.  Treble  and  other  increased  damages  to 

be  recovered 1378 

III.   Action  for  causing  death  by  negligence 1378 

Subd.  I.   The  right  of  action  and  limitation  thereof  . .  1378 
§  1902.   Action    for    causing     death    by     negli- 
gence, etc 1378 

Subd.  2.   By  and  against  whom  action  maintained 1378 

Subd.  3.   Pleadings 1385 

Subd.  4.   Evidence 1386 

Subd.  5.   General  provisions  relative  to  the  action 1389 

Subd.  6.   Damages  and  for  whose  benefit  awarded 1393 

§1903.   Damages,  and  for  whose  benefit 1393 

§  1904.   Id. ;  amount  of  recovery 1393 

§1905.   "  Next  of  kin"  defined 1393 

IV.   Action  for  slander  of  a  woman i399 

§  1906.   Action  for  slander  of  a  woman 1399 

V.  When  action  for  libel  cannot  be  maintained 1401 

§  1907.  When  action   for  libel  cannot  be  main- 
tained    1401 

§  1908.   The  last  section  qualified 1401 

CHAPTER  XXX. 

MISCELLANEOUS  ACTIONS  AND  RIGHTS  OF  ACTION. 

Article.  page. 

I.  What  claims  or  demands  are  assignable 1403 

Subd.  I.  What  claims  are  assignable 1403 

§  1909.   When    transferee  of   claim    or   demand 

may  sue;  rights  of  defendant,  etc 1403 

§  19 10.   What  claims  or  demands  may  be  trans- 
ferred     1404 

§1911.   Id.;  cause  of  action  for  usury 1404 

§  1912.   Judgment,  when  assignable 1404 


xlviii 


ANALYTICAL  TABLE  OF  CONTENTS. 


Article.  page. 

I.  What  claims  or  demands  are  assignable 1403 

Subd.  2.   What  claims  are  not  assignable 1412 

Subd.  3.   Who  has  power  to  assign  claims 1413 

Subd.  4.   What  constitutes  an  assignment 1414 

Subd.  5.   What  passes  under  an  assignment 1417 

II.  When  judgment  can  be  sued 1418 

§  1913.   Action  upon  judgment  regulated 1418 

III.  Action  for  discovery  abolished 142 1 

§  1914.  Ancillary  action  for  discovery  abolished,  142 1 

IV.  Action  on  a  penal  bond.    1422 

§1915.   Action  upon  a  penal  bond 1422 

V.   Action  by  surety  or  trustee  to  recover  costs 1428 

§  1916.   Action  by  surety  or  trustee  to  recover 

costs,  etc 1428 

VI.  Action  on  lost  negotiable  paper 1429 

§  1917.   Action  upon  lost  negotiable  paper 1429 

§  1918.   The  last  section  qualified 143° 


CHAPTER  XXXI. 

UNINCORPORATED  ASSOCIATION,   ACTION  BY  OR 

AGAINST. 

Article.  page. 

1.  When  action  can  be  maintained 143 1 

§  1919-  Actions,  etc.,  by   or  against  associations 

of  seven  or  more  persons 143 1 

II.   Effect  of  death  of  party  or  of  misnomer 1438 

§  1920.   Proceedings  in  case  of  death,  etc 1438 

§  1924.  When    objection    of    misnomer,  etc.,  of 

parties  not  available   ....  1438 

III.  Effect  of  judgment 1438 

§1921.   Effect  of  judgment;  execution  thereupon,  1438 

IV.  Subsequent  action  against  members  and  statute  of 

limitations i439 

§  1922.  Subsequent  action  against  members....  1439 
§  1923.   This    article    permissive;     effect    upon 

statute  of  limitations 1439 


ANALYTICAL    TABLE    OF    CONTENTS.  xlix 

CHAPTER  XXXII. 

CERTAIN    COUNTY,  TOWN    AND   MUNICIPAL    OFFICERS, 

ACTIONS  BY  OR  AGAINST. 
Article.  page. 

I.   Action  by  taxpayer  against  a  public  officer 1441 

§  1925.   Action  by    a  taxpayer  against  a  public 

officer . , 1441 

Laws  1892,  chap.  301,  §  i.    Action  against  pub- 
lic officer  for  illegal  acts 1441 

Laws    1892,    chap.   685,    §    3.     Investigation    of 

expenditures  of  towns  and  villages 1443 

II.  When  and  in  what  manner  actions  maintained  by  and 

against  certain  officers 1466 

§  1926.   Actions  by  certain  county,  town  and  mu- 
nicipal officers 1466 

§  1927.  Actions  against  such  officers 1466 

§  1928.   The  last  two  sections  qualified 1466 

§  1929.   Designation  of  such  officers  in  the  sum- 
mons, etc 1469 

§  1930.   Successor  may  be  substituted 1467 

§  193 1.   When   execution   against   officer    not   to 

issue 14^7 


CHAPTER  XXXIII. 

JOINT  DEBTORS,  ACTIONS  AND  RIGHTS  OF  ACTION  BY 

AND  BETWEEN. 

Article.  page. 

I.   Judgment  and  execution  against  defendants  jointly 

indebted  when  all  are  not  served 1472 

§  1932-   Judgment  against  defendants  jointly  in- 
debted, when  all  are  not  served 1472 

§  1933-   Effect  of  such  judgment 1473 

§1934.    Execution;   indorsement  thereupon   ...      1473 

§  1935.   How  collected i473 

§  1936-   Judgment,     how     docketed;     effect     of 

docketing i473 

II.   Proceedings  in  action  to  charge  defendants  not  per- 
sonally summoned i477 

§  1937.   Action  to  charge  defendants  not  person- 
ally summoned i477 

§  1938.   Complaint  in  such  action i477 


1  ANALYTICAL  TABLE  OF  CONTENTS. 

Article.  page. 
II.   Proceedings  in  action  to  charge  defendants  not  per- 
sonally summoned i477 

§  1939.   Answer i477 

§  1940.   Provisional  remedies i477 

§  1941.   Judgment i477 

III.   Composition  of  one  of  joint  debtors 1481 

§  1942.   Joint  debtors  may  compound  separately; 

mode  and  effect 1481 

§  1943.   Satisfying  judgment 1481 

§  1944.   Rights  of  the  debtors  not  released 1481 

IV.  Action  against  persons  engaged  in  transportation. . .  1484 
§  1945.   Action  against  persons  engaged  in  trans- 
portation    1484 

V,  Actions  against  and  between  partners 1484 

§  1946.  When  partner  not  sued  remains  liable  . .  1484 
§  1947.   Continuance  of  partnership  business  dur- 
ing action  for  accounting,  etc 1485 


CHAPTER  XXXIV. 

USURPER  OF  AN  OFFICE  OR  FRANCHISE,  ACTION 

AGAINST. 

Article.  page. 

I.  When  and  how  action  maintained 1487 

§  1948.  Attorney-general  may  maintain  action..  1487 
§  1949.   Proceedings     when     complaint     names 

rightful  incumbent 1488 

§1954.   One  action  against  several  persons.    ...  1488 

II.   Proceedings  in  the  action 1494 

Subd.  I.   Pleadings -  i494 

Subd.  2.   Injunction 1498 

§  1955-  ^^'hen  injunction  may  be  granted 1499 

Subd.  3.   Trial  by  jury i499 

§  1950.  Action  triable  by  jury i499 

Subd.  4.   Evidence 150° 

Subd.  5.   Costs  and  appeal i5°° 

III.   Judgment  and  its  effect i5°2 

§  1 95 1.  Assumption  of  office  by  person  entitled,  1502 

§  1952.   Proceedings  to  obtain  books  and  papers,  1502 

§  1953.   Damages ;  how  recovered 1502 

§  1956.   Final  judgment  in   action  for  usurping 

office,  etc 1502 


ANALYTICAL  TABLE  OF  CONTENTS.  H 

CHAPTER  XXXV. 

MISCELLANEOUS  ACTIONS  ON  BEHALF  OF  THE  PEOPLE. 

Article.  page. 

I.   Action  to  vacate  letters-patent 1508 

§  1957-   When    attorney-general    may    maintain 

action 1508 

§  1958.   Action  triable  by  jury 1508 

§  1959.   Copy  of  judgment-roll  to  be  filed,  etc  ..  1508 
§  i960.   Transcript  to  be  sent  to  county   clerk, 

etc 1509 

II.   Action  for  a  fine,    penalty  or  forfeiture  or  upon  a 

forfeited  recognizance 1509 

§  1961.   When  action  cannot  be  maintained 1509 

§  1962.   Action  for  forfeiture,  etc 1509 

§  1963.   Money  recovered,  how  disposed  of 1509 

§  1964.   Certain  proceedings  in  the  action  regu- 
lated    1509 

§  1965.   Recognizance;  how  forfeited 1509 

§  1966.   Action  on  recognizance 15 lo 

§  1967.   Money    received    by   district   attorney; 

how  disposed  of. ....    15  lo 

§  1968.   District  attorney  to  render  account  ....  15 10 

III.  Actions  founded  upon  the  spoliation  or  other  misap- 

propriation of  public  property 151^ 

§  1969.   Action  in  court  of  the   State  for  public 

funds  illegally  obtained, converted,  etc.  15 13 
§  1970.   Stay  of  other  domestic  actions;  parties 

thereto  to  be  brought  in 15 13 

§1971.   Actions,  etc., in  foreign  courts 15 13 

§  1972.   Money  damages,  etc.,  vest  in  people,  on 

commencement  of  action 15 13 

§  1973.   Limitation  of  action 15 13 

§  1974.   Ultimate    disposition    of     proceeds    of 

action  in  court  of  the  State 15 14 

§  1975.   Id.;  upon  petition  of  corporation,  etc., 

aggrieved 15 14 

§  1976.   Attorney-general  must  bring  action. .. .  15 14 

IV.  Action  to  recover  property  escheated  or  forfeited. . .  15 15 

§  1977.   Attorney-general  to  bring  ejectment  for 

real  property  escheated  or  forfeited. .      1515 

§  1978.   Notice   to  be   published  before  trial   or 

judgment 15 15 


Ill  ANALYTICAL   TABLE    OF   CONTENTS. 

Article.  page. 

IV,  Action  to  recover  property  escheated  or  forfeited. . .      15 15 
§  1979.  When  unknown  claimants  may  be  made 

defendants  15 16 

§  1980.   Effect    of    judgment   against    unknown 

claimants 15 16 

§  1981.   Attorney-general    to    report    recoveries 

to  commissioners  of  land  office.  ......      15 16 

§  1982.   Action  to  recover  personal  property  for- 
feited for  treason 15 16 

V.   Miscellaneous  provisions  relating  to  action  on  behalf 

of  the  people 15 17 

§1983.   Scire  facias,  quo  warranto,  ttc,  a.ho\ish.ed,      15 17 
§  1984.   Actions  to   be  brought  in  the  name  of 

the  people 15 17 

§  1985-   Judgment  for  costs  may  be  taken  against 

the  people 1517 

§  1986.   Relator;  when  to  be  joined  as  plaintiff; 

compensation  of  attorney-general ....      15 17 
§  1987.   Costs;  how  collected  against  corporation 

and  usurpers  of  franchise 15 17 

§  1988.   Joinder  of  causes  of  action  against  same 

person 15 17 

§  1989.   Consolidation  of  actions  against  several 

defendants 15 18 

§  1990.  When    people,    municipal     corporation, 

etc.,  not  required  to  give  security 1518 


SPECIAL  ACTIONS 


UNDER    THE 


CODE  OF  CIVIL  PROCEDURE. 


CHAPTER  I. 


* 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

PAGE. 

Article     i.   Nature  and  purpose  of  the  action 2 

2.  When  the  action  can  be  maintained 4 

3.  When  the  action  will  not  lie.      Sees.  1498,  1499,,.  9 

4.  By  whom    the    action    can  be  maintained.      Sees. 

1500,  1501,  1680 13 

5.  What  is  necessary  to  entitle  plaintiff  to  recover. . .  22 

6.  Who  may  be  defendants  and  who  must  be  joined 

as  such.      Sees.  1502,  1503 26 

7.  Production  of  authority  by  attorney.      Sees.  15 12, 

1513,  1514 31 

8.  The  complaint.      Sec.  151 1 S3 

9.  Defences,  legal  and  equitable,  and  how  pleaded. . .  43 

10.  What    rents   and    profits    are  recoverable  and  re- 

ceivership.    Sees.    1496,    1497,  1531 63 

11.  Right    to    recover   against    occupants    separately. 

Sees.    1516,1517,1518 70 

12.  When  action  will  be  severe'.    Sees.  1521,  1522,  1523.  72 

13.  Evidence.     Sec.    15 15 73 

14.  Verdict.      Sec.   1519,    1520 78 

p  15.   New  trial  and    its    effect,    and    evidence  thereon. 

Sees.  1525,  1526,  1527,  1528,  1530 80 

16.  Effect  of  judgment.      Sees.  1529,  1524 87 

17.  Costs  in  ejectment 90 

18.  Execution  in  ejectment 92 

19.  Ejectment    for    non-payment    of    rent,    and    pro- 

cedure thereon.      Sees.  1504-1510 95 

*The  leading  authorities  on  the  law  of  Ejectment  are  Tyler  on  Ejectment  and 

Adverse  Enjoyment,  Newell  on  Ejectment,  Article  "Ejectment"  American  and 

English  Encyclopedia  of  Law.      The  subject  is  treated   in  Bingham  on   Real  Es- 
tate and  to  a  greater  or  less  extent  in  all  works  on  real  property. 

[I] 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT), 


Art.  I.     Nature  and  Purpose  of  the  Action. 


Sections  of  the  Code  of  Procedure  and  Where  Found  in  this 

Chapter, 
sec.  art.  page. 

1496.  Plaintiff  may  recover  damages  with  the  land 10  63 

1497.  Rents  and  profits  to  be  included  in  damages 10  63 

1498.  Mortgagee  cannot  maintain  action 3  9 

1499.  Action  cannot  be  maintained  for  dower 3  10 

1500.  Separate  action  by  joint  tenant  or  tenant  in  common 4  13 

1501.  Grantee  of  lands  held  adversely  may  maintain  action 4  15 

1502.  Against  whom  action  to  be  brought 6  26 

1503.  Who  may  be  joined  as  defendants 6  27 

1504.  When  action  may  be  brought  for  non-payment  of  rent 19  95 

1505.  Id.;  when  right  of  re-entry  is  reserved  for  want  of  distress.      .  .  19  95 

1506.  Action  against  tenant,  when  proceedings  to  be  stayed 19  95 

1507.  Id.;  amount  of  rent  in  arrear  to  be  stated  in  judgment 19  95 

1508.  1509.   Id.;  when  possession  to  be  restored  to  defendant 19  96 

1510.  Id.;  use  of  property,  when  set  off  against  rent 19  96 

1511.  Property  claimed  in  action  ;    how  described  in  complaint 8  33 

1512.  Motion  for  plaintiff's  attorney  to  produce  his  authority 7  3^ 

1513.  Order   thereupon 7  3^ 

1514.  Evidence  of  authority 7  32 

1515.  When  ouster  to  be  proved 13  73 

1516.  Rule,  when  there  are  distinct  occupants 11  70 

1517.  The  last  section  qualified n  7i 

1518.  When  plaintiff  may  recover  against  one  defendant,  subject  to 

rights  of  others n  7i 

1519.  Verdict,  etc.,  to  state  nature  of  plaintiff's  estate 14  7S 

1520.  Expiration  of  plaintiff's  title  before  trial 14  78 

1521.  Abatement  of  action 12  72 

1522.  Action  to  be  divided,  when  different  persons  succeed  to  different 

parcels 12  72 

1523.  Id.;  when  different  persons  succeed  to  real  property  and  to  rents 

and  profits   12  72 

1524.  Effect  of  judgment  rendered  after  trial  of  issue  of  fact 16  87 

1525.  New  trial   may  be  granted 15  80 

1526.  Effect  of  judgment  by  default,  etc 15  Si 

1527.  Id. ;  exception  in  case  of  disability 15  81 

1528.  The  last  three  sections  qualified 15  Si 

1529.  Possession  not  to  be  changed  by  vacating  of  judgment 16  87 

1530.  Evidence  on  new  trial 15  Si 

1531.  Damages  recoverable  ;  set-off  by  defendant 10  63 

1680.   Reversioner,  etc.,  may  bring  action  after  tenant's  default 4  22 

ARTICLE  I. 
Nature  and  Purpose  of  the  Action. 

Ejectment  is  brought  to  establish  through  a  judicial  determi- 
nation, the  title  to  land  ;  and  to  remove  therefrom  those  wrong- 


ACIION  1  O  RECOVER  REAL  PROPERTY  (EJECTMENT),      3 

Art.  I.      Nature  and  Purpose  of  the  Action. 

fully  in  possession  or  whose  title  has  been  determined  by 
limitation,  forfeiture  or  otherwise.  It  lies  wherever  the  right  of 
entry  exists,  and  the  interest  is  of  such  a  character  that  posses- 
sion of  the  land  can  be  delivered  in  execution  of  a  judgment  for 
its  recovery.     Gerard's  Titles  to  Real  Estate,  4th  edition,  p.  825. 

In  the  original  draft  of  the  Code  of  Civil  Procedure  presented 
to  the  legislature,  the  first  section  of  the  article  treating  of  the 
action  to  recover  the  possession  of  lands,  contained  the  defini- 
tion, "An  action  to  recover  real  property  is  styled  in  this  act  an 
action  of  ejectment."  This  clause  was  subsequently  stricken  out, 
although  the  codifiers  stated  their  intention  to  formally  recognize 
the  word  "  ejectment  "  as  a  word  which  had  been  in  use  under 
the  former  code  and  had  a  well-defined  meaning  at  common  law. 
The  definition  of  the  action  and  statutory  authority  therefor, 
were  abolished  by  the  repeal  of  the  Revised  Statutes,  and  there- 
fore the  common-law  right  is  the  only  authority  for  the  action, 
as  regulated  by  the  Code  of  Civil  Procedure,  except  that  section 
3343,  subdivision  20,  defines  the  meaning  of  the  words  "  an  action 
of  ejectment  "  to  be  "  an  action  to  recover  the  immediate  pos- 
session of  real  property."  This  remark  is  doubtless  intended  to 
apply  to  the  action  regulated  by  this  article  of  the  code  although 
the  revisers  evidently  overlooked  these  definitions  and  entitled 
the  action  "  an  action  to  recover  real  property,"  altogether  ignor- 
ing the  word  "  ejectment "  which  has  been  retained  in  common 
use  and  is  here  used  as  a  sub-title. 

It  is  in  substance,  after  abolishing  the  formalities,  the  action 
which  has  been  recognized  for  a  long  period  as  the  appropriate 
method  for  ejecting  a  party  not  entitled  to  possession  of  lands 
at  the  suit  of  the  rightful  owner  or  person  entitled  to  posses- 
sion. The  right  to  possession  of  real  estate  was  originally 
determined  by  real  actions,  which  in  time  became  so  incumbered 
with  useless  technicalities  as  to  be  almost  useless,  great  strictness 
of  pleading  being  required,  and  the  practice  being  of  the  most 
formal  character,  substance  being  sacrificed  to  form.  Sedgwick 
&  Wait  on  Titles  to  Land,  p.  4.  Thereupon,  the  form  of  action 
familiar  at  common  law  was  introduced,  and  the  legal  fiction  was 
resorted  to  of  a  demise,  first  to  a  real,  and  then  to  a  fictitious 
person,  as  plaintiff,  who  brought  an  action  against  the  person  in 
possession.  Wait's  Actions  and  Defenses,  vol.  3,  p.  2.  The  effect 
of  the  action  at  first  was  only  to  determine  the  right  to  the  pos- 


4  ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  2.     When  the  Action  can  be  Maintained. 

session.  Ejectment  is  a  species  of  mixed  action,  which  will  lie 
to  recover  the  possession  of  lands,  with  damages  and  costs  for 
the  wrongful  withholding  of  them,  being  the  principal  method 
in  modern  use  for  trying  the  title  to  land.  Burrill's  Law  Dic- 
tionary. It  is  a  possessory  remedy,  and  does  not  lie  by  one  who 
has  not  an  immediate  interest  or  right  to  possession.  Comyn's 
Digest,  vol.  3,  p.  61 1.  It  was  formerly  a  mixed  action,  grounded 
on  the  right  to  possession  of  the  premises  in  question  between 
the  parties.     Bacon's  Abridgment,  title  Ejectment. 

By  the  Code  of  Procedure  the  action  became  one  to  try 
title  between  the  real  parties  in  interest,  and  as  such  it  is  now 
recognized  although  not  defined,  under  the  name  of  "  action  to 
recover  real  property."  It  now  tests  not  only  the  right  to  the 
possession  but  the  title  under  which  the  right  exists,  whether 
in  fee  for  life  or  for  years.     Cagger  v.  Lansing,  64  N.  Y.  417. 

It  has  always  in  practice  retained  the  name  of  ejectment,  and 
will  be  so  treated  for  convenience  in  this  chapter. 

ARTICLE  II. 
When  the  Action  can  be  Maintained. 

The  action  of  ejectment  is  maintainable  only  for  corporeal  here- 
ditaments, something  tangible  and  visible,  and  upon  which  an 
entry  can  be  made  and  of  which  the  owner  can  be  disseized. 
Child  V.  Chappell,  9  N.  Y.  246;  Roivan  v.  Kclscy,  18  Barb.  484; 
Jacksofi  V.  Loiicks,  9  Johns.  298  ;  WoodJiull  v.  RoscntJial,  61  N.  Y. 
382  ;  Jackson  v.  May,  16  Johns.  184. 

The  true  test  of  this  action  seems  to  be  that  the  thing  claimed 
should  be  a  corporeal  hereditament;  that  a  right  of  entry  should 
exist  at  the  time  of  the  commencement  of  the  action,  and  the 
interest  be  visible  and  tangible,  so  that  the  sheriff  may  deliver  the 
possession  to  the  plaintiff  in  execution  of  the  judgment  of  the 
court.     Rowan  v.  Kclsey,  18  Barb.  484. 

In  Howe  v.  Bell,  143  N.  Y.  190,  62  St.  Rep.  361,  plaintiff  was 
held  entitled  to  maintain  ejectment  upon  the  question  as  to 
whether  a  certain  instrument  imposed  an  easement  on  his  lot. 
Whenever  one  person  enters  upon  and  takes  permanent  posses- 
sion of  the  real  property  of  another,  claiming  title  thereto, 
whether  it  arises  over  a  disputed  boundary  or  otherwise,  an  un- 
lawful ouster  has  been  made,  for  which  an  action  of  ejectment  is 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).     5 


Art.  2.     When  the  Action  can  be  Maintained. 


the  proper  and  only  sufficient  remedy.     Lcprellv.  Kleinschmidt, 
112  N.  Y.  364,  reversing  17  St.  Rep.  231. 

Where  individuals  without  authority  erected  a  pier  in  New 
York  city,  held  that  they  acquired  no  right  by  adverse  possession, 
prescription  or  estoppel  and  that  an  action  of  ejectment  could 
be  maintained  by  the  city.     Mayor,  etc.  v.  Law,  125  N.  Y.  380,  35 

St.  Rep.  437- 

It  will  lie  for  a  house  or  a  room,  Childv.  Chappell,^^.  Y.  246, 
sjipra  ;  or  for  a  church  or  chapel.  Van  Deuscn  v.  Presbyterian  Con- 
gregation of  Fort  Edzvard,  3  Keyes,  550.  It  was  held  in  Jack- 
son V.  May,  16  Johns.  184,  siipra,  that  ejectment  would  lie  for  any- 
thing attached  to  the  soil ;  but  this  must  be  taken  subject  to  the 
qualification  that  it  is  part  of  the  realty.  Ejectment  lies  for 
lands  covered  by  a  mill  dam.  Bcals  v.  Stewart,  6  Lans.  408. 
Lands  under  water  may  be  recovered  by  ejectment.  People  v. 
Manran,  5  Den.  389.  So  held  in  cases  of  grant  of  lands  under 
water  by  the  State.  Chaniplain  &  St.  Lazvrence  R.  R.  Co.  v. 
Valentine,  19  Barb.  484  ;  Blakeslee  Co.  v.  B  lakes  lees  Sons,  59 
Hun,  209,  13   Supp.  493,  37   St.  Rep.  707. 

See  Murphy  v.  Norton,  61  How.  197,  as  to  title  to  lands 
reclaimed  from  the  sea  by  natural  means.  The  owner  of  the  fee 
of  a  highway  over  which  the  public  have  an  easement  for  travel 
may  recover  the  land  within  the  limits  of  the  highway,  in  eject- 
ment against  one  who  has  illegally  appropriated  it  to  a  purpose 
not  authorized  by  the  easement.  Et:::  v.  Dailey,  20  Barb.  32  ; 
Carpenter  v.  Oswego  &"  S.  R.  R.  Co.  24  N.  Y.  655  ;  IVager  v.  Troy 
Union  R.  /?.  C^.  25  N.  Y.  526  ;  Reformed  Church  v.  Schoolcraft,  65 
N.  Y.  135  ;  Brozvn  v.  Galley,  Hill  &  Den.  Sup.  308.  So  ejectment 
will  lie  against  a  railroad  company  by  the  owner  of  the  fee  where 
the  street  has  been  appropriated  without  making  compensation 
therefor,  hosier  v.  N.  V.  C.  R.  R.  Co.  42  Barb.  465  ;  JVagcr  v. 
Troy  Union  R.  R.  Co.  2^-,  N.  Y.  ^26,  supra  ;  Carpenter  v.  Oszvego, 
etc.,  R.  R.  Co.  24  N.  Y.  655,  supra.  The  action  may  be  main- 
tained against  a  city  to  recover  land  used  for  a  street,  under  the 
claim  that  the  owner  has  no  private  right  in  the  land.  Strong  v. 
City  of  Brooklyn,  68  N.  Y.  i. 

Actual  entry  upon  a  small  piece  of  land  which,  for  natural  rea- 
sons, cannot  be  fenced,  placing  stone  monuments  around  it  and 
bring-in"-  lumber  thereon  to  build,  constitutes  such  possession  as 
will  entitle  the  party  to  maintain  ejectment  against  a  subsequent 


6     ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  2.     When  the  Action  can  be  Maintained. 


intruder.  Prior  possession  under  a  claim  of  ownership  is  enough 
to  maintain  ejectment  against  one  claiming  a  right  of  possession 
only  under  a  later  entry.  Mission  of  the  Immaculate  Virgin  v. 
Cro7iin,  14  Misc.  372,  36  N.  Y.  Supp.  'j'j. 

The  maintenance  of  a  flagman's  shanty  is  a  sufficient  occupa- 
tion of  land  to  justify  the  institution  of  an  action  of  ejectment, 
and  the  right  to  a  recovery  is  not  affected  by  a  removal  of  such 
shanty  during  the  pendency  of  the  action.  Archibald  v.  ^V.  Y. 
C.  &  H.  R.  R.  R.  Co.  I  App.  Div.  251,  37  N.  Y.  Supp.  336,  72  St. 
Rep.  689. 

An  action  founded  only  upon  adverse  possession,  can  be  main- 
tained even  against  the  owner,  where  the  plaintiff's  claim  of  title 
is  not  founded  upon  a  written  instrument,  judgment  or  decree. 
Plaintiff  must  show  an  actual,  continued  occupation  of  the  premi- 
ses under  claim  of  title.  Under  such  circumstances  where  the 
land  has  been  protected  by  a  substantial  enclosure  or  been 
usually  cultivated  or  improved,  the  premises  actually  occupied 
can  be  deemed  to  have  been  held  adversely.  Barnes  v.  Light, 
116  N.  Y.  34;  s.  c.  26  St.  Rep.  654. 

It  was  held  in  Brondage  v.  Warner,  2  Hill,  145,  that  ejectment 
would  not  lie  for  land  covered  by  a  party  wall.  See  Rogers  v. 
Sins  he  inter,  50  N.  Y.  646. 

Where  a  clause  in  a  lease  provided  for  its  determination  at  the 
option  of  the  lessors  on  the  non-payment  of  the  rent,  they  may 
maintain  ejectment  on  breach  of  condition,  though  no  right  of  re- 
entry is  reserved.  H or  ton  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.  12 
Abb.  N.  C.  30. 

In  Leprell  v.  KleinscJimidt ,  112  N.  Y.  at  p.  369,  Ruger,  Ch.  J. 
says:  "  We  do  not  undertake  to  decide  whether  an  action  of 
ejectment  will  lie,  for  the  projection  of  the  eaves  of  a  building 
over  the  lands  of  another,  as  the  question  does  not  arise  on  this 
appeal,"  and  cites  Sherry  v.  Freckling,  4  Duer.  453  ;  Aiken  v. 
Benedict,  39  Barb.  400  ;    Vrooman  v.  Jackson,  6  Hun,  326. 

An  executory  contract  for  the  sale  of  the  lands  affords  no  right 
to  the  possession  to  the  purchasers  holding  under  it,  as  against  a 
grantee  of  the  legal  title,  and  the  latter  may  recover  possession  in 
ejectment  without  putting  the  defendant  in  default  under  the 
contract  by  tendering  a  deed,  as  the  action  is  not  founded  on 
such  contract  but  rests  on  legal  right.  Riseley  v.  Rice,  40  Hun, 
585.     In  order  to  maintain  the  action  the  claim   of  title,  or  of 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMEXT).     / 

Art.  2.     When  the  Action  can  be  Maintained. 

some  interest  in  the  premises,  must  be  such  a  claim  that,  if  it 
were  reduced  to  possession  or  enjoyment,  it  would  constitute  an 
actual  occupation.  A  claim  to  use  a  wharf  as  appurtenant  to  a  mill 
is  not  enough.  CJiild  v.  Chappcll,  9  N.  Y.  246.  Though 
a  lease  for  seven  years  is  a  chattel  interest,  ejectment  lies  to  re- 
cover possession  of  the  land  demised.  Olcndorf  w  Cook,  i  Lans. 
^J.  One  in  possession  under  a  contract  of  sale  may  maintain 
ejectment  against  a  stranger.     MiirpJiy  v.  Loomis,  26   Hun,  659. 

Where  a  railroad  company  has  constructed  its  track  across  the 
corner  of  a  lot  of  land  over  wdiich  it  ordinarih-  runs  its  trains,  its 
acts  amount  to  such  an  appropriation  of  the  possession  of  the 
lands  so  taken  as  to  authorize  ejectment  ;  in  such  case  no  demand 
of  possession  or  notice  to  quit  is  necessary,  and  plaintiff  may 
recover,  subject  to  the  easement  of  the  public,  that  part  of  an  ad- 
joining street  to  which  he  has  title,  which  is  also  occupied  by 
such  railroad  tracks.  Gas-light  Co.  of  Syracuse  v.  Rome,  etc.  R. 
R.  Co.  1 1  Civ.  Pro.  R.  239.  This  case  is  modified  to  hold  that 
the  owner  of  the  land  of  a  street  may  recover  such  part  as  is  en- 
tered upon,  without  the  consent  of  the  owner,  and  used  by  a  rail- 
road operated  by  steam.     S.  C.  51  Hun,  119;   5  N.  Y.  Supp.  459. 

Ejectment  will  lie  against  a  railroad  company  to  recover  a  strip 
of  land,  not  occupied  by  the  track  but  which  defendant  claims  to 
own  where  the  extent  of  the  lot  was  not  given  by  deed  ;  it  being 
incumbent  on  defendant  to  show  that  the  right  of  way  exceeded 
the  space  occupied  by  its  track.  Harris  v.  Brooklyn,  etc.  R.  R. 
Co.  15  Weekly  Digest,  362. 

The  owner  of  land  upon  which  a  contractor  is  erecting  a  build- 
ing has  a  right  to  enter  the  building  for  the  purpose  of  inspecting 
the  work  as  it  progresses,  and  upon  his  exclusion  is  not  obliged  to 
have  recourse  to  a  rescission  of  the  contract  but  may  maintain 
ejectment  against  the  contractor.  Smith  v.  Revels,  79  Hun,  213, 
61  St.  Rep.  138,  29  Supp.  658. 

Defendants  claimed  under  a  deed  from  the  grantee  of  the 
sheriff  by  virtue  of  a  sale  under  a  judgment  against  the  plaintiff's 
grantor  ;  the  judgment  having  been  decided  by  the  Court  of 
Appeals  to  be  void  by  reason  of  insufficient  service  by  publica- 
tion of  the  summons  in  the  action  in  which  it  was  granted,  held 
that  plaintiff  could  recover  in  ejectment.  McCracken  v.  Flana- 
gan, 51  St.  Rep.  545,  21  Supp.  1 108. 

The  permanent  appropriation  by  a  telegraph  company  of  a  por- 


ACTION  TO  RECOVER  REAL  PROrERTV  (EJECTMENT). 
Art.  2.     When  the  Action  can  be  Maintained. 


tion  of  a  highway,  the  fee  of  which  is  in  the  adjoining  owners,  by 
the  erection  of  poles  thereon  without  consent  of  such  owners  or 
compensation  to  them,  is  unlawful,  and  ejectment  is  maintainable 
against  it  by  such  owners.  Eels  v.  American  Telephone  and  Tele- 
graph Co.  143  N.  Y.  133,  62  St.  Rep.  138. 

Where  the  sole  question  is  one  of  boundary  which  has  been 
acquiesced  in  since  1839  ^y  both  owners,  plaintiff  is  entitled  to 
recover.     Dale  v.  Jackson,  30  St.  Rep.  373. 

A  devisee  who  claims  a  mere  legal  estate  in  real  property  of 
the  testator,  where  there  is  no  trust,  must  assert  his  title  by  eject- 
ment rather  than  by  an  action,  co  establish  the  validity  of  the 
devise.     Anderson  v.  Appleton,  48  Hun,  534. 

The  action  of  ejectment  is  the  proper  remedy  to  try  the  title 
by  adverse  possession  to  real  estate.  Van  Schuyver  v.  Mulford, 
59  N.  Y.  426;  Florence  \.  Hopkins,  ^6  N.  Y.  182  ;  Caggerw.  Lans- 
ing, 64  N.  Y.  417.  It  is  the  proper  remedy  to  determine  validity  of 
a  will  devising  real  estate.  Post  v.  Hover,  33  N.  Y.  593.  It  is  the 
appropriate  action  to  determine  the  validity  of  a  conveyance. 
Bockes  V.  Lansing,  13  Hun,  38  ;  affirmed,  74  N.  Y.  437.  In  Vroo- 
man  v.  Jackson,  6  Hun,  326,  it  was  held  that,  where  the  com- 
plaint was  in  ejectment,  an  amendment  could  not  be  had  on  the 
trial  so  as  to  restrain  an  unlawful  interference  ;  while  in  Brozvn  v. 
Leigh,  49  N.  Y.  78,  an  amendment  was  allowed  in  an  action  to 
compel  the  determination  of  conflicting  claims  to  real  property  so 
as  to  .set  forth  a  cause  of  action  in  ejectment.  In  Madison  Ave- 
nue Baptist  Church  v.  Baptist  Church  in  Oliver  Street,  73  N.  Y. 
82,  an  action  in  ejectment  was,  by  supplemental  pleading,  sub- 
stantially turned  into  an  action,  on  the  part  of  plaintiff,  to  redeem 
from  a  mortgage,  and  on  the  part  of  defendant,  to  an  action  to 
foreclose.  It  .seems  that  the  remedy  of  a  purchaser  of  real  estate, 
if  the  vendor  refuses  to  surrender  possession,  is  by  ejectment 
alone,  in  which  he  may  recover  damages  by  way  of  mesne  profits, 
for  the  unlawful  withholding  the  possession.  Preston  v.  Haivley, 
loi  N.  Y.  586. 

The  action  can  be  maintained  by  an  infant  for  property  collu- 
sively  awarded  for  dower.  §  1605.  By  remainderman  after  judg- 
ment by  default  of  life  tenant.  §  1680.  By  landlord  for  eject- 
ment of  tenant  holding  over.  2  R.  S.  p.  18 19,  i^  9,  9th  ed.  And 
the  attorney-general  may  bring  ejectment  for  escheated  property. 
§  1977-1982. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).     9 


Art.  3.     When  the  Action  Will  Not  Lie. 


The  action  must  be  tried  in  the  county  where  the  property  is 
situated  under  §  982,  and  is  triable  by  a  jury  under  §  968, 
sub.  2. 

Every  tenant  is,  under  §  27,  p.  1821,  R.  S.  9th  ed.,  bound  to 
give  notice  to  his  landlord  of  any  process  in  ejectment  served 
upon  him,  under  penalty  as  therein  prescribed. 

ARTICLE  III. 
When  the  Action  Will  Not  Lie. 

Sub.  I.  Mortgagee  cannot  maintain  ejectment.     §  1498. 

2.  Action  cannot  be  maintained  for  dower.     §  i499- 

3.  When  action  cannot  be  maintained. 

Sub.  I.   Mortgagee  Cannot  Maintain  Ejectment.     §  1498. 

§  1498.  Mortgagee  cannot  maintain  action. 

A  mortgagee,  or  his  assignee  or  other  representative,  cannot  maintain  such 
an  action,  to  recover  the  mortgaged  premises. 

The  remedy  by  ejectment  was  formerly  used  by  mortgagees  to 
recover  possession  of  the  mortgaged  premises  after  default  by  the 
mortgagor.     Prior  to  the  Revised  Statutes  that  was  the  rule  in 
this  State.     The  present  section  is  a  re-enactment  of  2  R.  S.  312. 
The  statute  is  cited  or  commented  upon.     Packer  v.  R.  &■  S.  R. 
R.  Co.iyN.  Y.  283  ;    Trimni  v.  Marsh,  54  N.  Y,  599  ;  Madison  Ave- 
nue Baptist  Cliurch  v.  Oliver  Street  Baptist  Church,  73  N.  Y.  82  ; 
Denning  \.  Fisher,  20  Hun,  178.     But  on  the  other  hand,  a  mort- 
gagor in  default  may  have  ejectment  against  an  intruder  or  one 
claiming  under  a  void   deed,  as  he  has  the  right   of  possession 
against  every  one  except  the  mortgagee  in  possession.     Olmsted 
V.  Elder,  5    N.  Y.    144.     The   rule  preventing  a  mortgagee  from 
maintaining  ejectment  applies  to  a  deed  absolute  on  its  face,  but 
held  as  security.     Murray  v.  Walker,  31  N.  Y.  399  ;  Carr  v.  Carr, 
52  N.  Y.  25 1.     The  provision  of  the  statute  embraces  every  descrip- 
tion of  mortgage  which,  prior  to  the  Revised  Statutes,  could  have 
been  made,  and   it  is  not  confined  to  instruments  accompanied 
by  a  bond  or  other  security  for  the  payment  of  money  and  which 
contain  a  power  of  .sale.     Stewart  v.  Hutchins,   13  Wend.  485; 
affirmed,  6  Hill,  143. 

One  who  takes  an  a.ssignment  of  the  purchaser's  interest  in  an 
executory  contract  for  lands  as  security  for  a  debt,  cannot,  on 


lO    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  3.     When  the  Action  Will  Not  Lie. 


default,  recover  possession  of  the  lands  from  his  assignor.  Such 
an  assignment  is  in  the  nature  of  a  mortgage  and  may  be  fore- 
closed in  equity  ;  but,  to  recover  possession  in  ejectment,-  plain- 
tiff must  show  a  legal  title.  Campbell  v.  Szvan,  48  Barb.  109. 
See  Meigs  v.  Willis,  66  How.  466 ;  Holconibe  v.  Holcombe,  2 
Barb.  20. 

Ejectment  cannot  be  maintained  on  a  title  founded  on  a  deed 
which  although  absolute  on  its  face,  was  known  to  the  plaintiff 
when  he  took  the  title  to  have  been  intended  as  security  for  a 
loan.     Berdcll  v.  Berdell,  33  Hun,  535. 

A  mortgagee  who  gets  in  possession  by  foreclosure  which  is 
void  as  to  the  owner,  does  not  become  a  mortgagee  in  possession, 
and  ejectment  will  lie  against  him.  Howell  v.  Leavitt,  95  N.  Y. 
617. 

One  who  purchases  under  foreclosure  sale  by  advertisement  for 
the  benefit  of  a  third  person,  under  an  agreement  by  which  he  is 
to  hold  the  title  as  security  for  his  advance,  takes  only  the  rights 
of  a  mortgagee  and  cannot  maintain  ejectment.  Vaii  Vleck  v. 
Enos,  88  Hun,  348,  34  Supp.  754,  68  St.  Rep.  572. 

A  mortgagor  cannot  maintain  ejectment  against  a  mortgagee 
in  possession,  who  has  received  rents  and  profits  sufificient  to 
satisfy  the  mortgage,  until  an  accounting  has  been  had  and  the 
rents  and  profits  actually  applied  on  the  mortgage.  Hubbcll  v. 
Moulson,  53  N.  Y.  225.  But  a  mortgagee  in  possession  can 
recover  in  ejectment  on  proof  of  adverse  possession,  under  the 
statute,  against  one  who  has  ousted  him  from  possession.  Haley 
V.  Steves,  7  St.  Rep.  698,  following  Bedell  v.  Shaw,  59  N.  Y.  50. 

Sub.  2.   Action  Cannot  be  Maintained  for  Dower.     §  1499- 
§  1499.  Action  cannot  be  maintained  for  doTver, 

Such  an  action  cannot  be  maintained,  in  a  case  where  an  action  for  dower 
may  be  maintained,  as  prescribed  in  article  third  of  this  title. 

The  remedy  for  dower  is  provided   by  article  3  of  title  i,  of 

chapter  XIV  of  the  Code,  §    1 596-1625,  and  provisions  of  that 

article  supersede  2  R.  S.,  §  2,  allowing  ejectment  for  dower. 

Sub.  3.  When  Action  Cannot  be  Maintained. 

Ejectment  cannot  be  inaintained  by  a  party  other  than  the 
people  unless  the  plaintiff,  his  ancestor,  predecessor  or  grantor 
was  seized  or  possessed  of  the  premises  in  question  within  twenty 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    II 

Art.  3.     When  the  Action  Will  Not  Lie. 

years  before  the  commencement  of  the  action.  Code,  §  365.  It 
is  held  that  this  limitation  appHes  only  to  cases  where  prior  to 
the  Code  the  remedies  sought  were  administered  in  a  court  of 
law.  Hubbell  v.  Sibley,  50  N.  Y.  468,  affirming  5  Lans.  51  ;  Miner 
V.  Beeknian,  50  N.  Y.  337,  reversing  1 1  Abb.  N.  S.  i,  42  How.  33. 
In  an  action  to  recover  possession  of  lands  on  the  seashore  where 
the  plaintiff  does  not  trace  his  title  to  the  original  patentee  nor 
show  possession  in  himself  or  his  grantors,  he  cannot  recover. 
The  mere  payment  of  taxes,  claim  of  title  and  assertion  of  owner- 
ship even  if  made  upon  the  land,  will  not  show  actual  possession 
which  raises  a  presumption  of  title  sufficient  to  maintain  the 
action.  Greenlcaf  v.  Brooklyn,  etc.  R.  R.  Co.  141  N.  Y.  395,  57 
St.  Rep.  613. 

The  fact  that  plaintiff  in  ejectment  claimed  under  a  deed  more 
than  thirty  years  old,  does  not  change  the  rule  requiring  proof  of 
the  title  or  possession  of  the  grantor  in  such  case.  McClellan  v. 
Zzvingli,  24  Supp.  371,  53  St.  Rep.  751. 

Where  a  will  confers  a  power  of  sale  on  the  executor  and  gives 
the  proceeds  to  persons  named  therein,  the  executor  takes  no  title 
to  the  real  estate  and  cannot  maintain  ejectment.  Smith  v. 
Chase,  90  Hun,  99,  35  N.  Y.  Supp.  615,  70  St.  Rep.  411. 

An  action  of  ejectment  cannot  be  maintained  by  one  who  has, 
at  most,  an  equitable  title  to  land  arising  out  of  an  executory 
contract  for  its  purchase.  Bennett  v.  Gray,  92  Hun,  86,  36  N.  Y. 
Supp.  372,  71  St.  Rep.  142. 

One  claiming  under  a  conveyance,  in  form  a  deed  but  in  fact  a 
mortgage,  cannot  maintain  ejectment  against  the  grantor  or  any 
other  person.     SJiattuck  v.  Bascom,  105   N.  Y.  39. 

Ejectment  will  not  lie  for  incorporeal  hereditaments  or  a  mere 
easement,  as  a  right  to  flow  land.  Wilklozv  v.  Lane,  37  Barb.  244. 
Nor  against  one  who  erects  a  gutter  on  his  own  premises  project- 
ing over  his  neighbor's  land.  Aiken  v.  Beneelict,  39  Barb.  400. 
Nor  for  a  projecting  cornice.  Vrooman  v.  Jackson,  6  Hun,  326 ; 
Brady  v.  Hennion,  8  Bosw.  528. 

For  the  rule  that  the  owner  of  the  land  on  which  a  tree  stands 
is  the  owner  of  the  entire  tree  notwithstanding  some  of  its 
branches  overhang  the  land  of  another,  see  Hoffman  v.  Arm- 
strong, 48  N.  Y.  201.  It  will  not  lie  for  things  existing  merely  in 
grant,  not  capable  of  being  delivered  in  execution.  Northern 
Turnpike  Co.  v.  Smith,  15  Barb.  355.     It   is  said   to  be  doubtful 


12    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  3.     When  the  Action  Will  Not  Lie. 


whether  the  action  will  lie  to  recover  land  covered  by  a  party 
wall ;  in  any  event  the  only  interest  to  be  recovered  would  be 
the  fee  subject  to  the  easement.  Rogers  v.  SinsJicimcr,  50  N.  Y. 
646  ;  Vroonian  v.  Jackson,  6  Hun,  326  ;  Kurkel  v.  Haley,  47  How. 
75.  It  does  not  lie  for  a  right  of  way.  Rcdfield  v.  Utica  &  R. 
R.  Co.  25  Barb.  54. 

Ejectment  does  not  lie  against  a  municipal  corporation  for  land 
used  as  a  public  street  where  it  is  not  claimed  the  owner  had  no 
private  right  ;  as  it  is  not  in  the  occupancy  of  the  corporation,  it 
only  has  an  easement.  Cowenlioven  v.  City  of  Brooklyn,  38 
Barb.  9.  Ejectment  will  not  lie  to  determine  the  right  to 
the  use  of  piers,  etc.  Mayor  v.  N.  S.  S.  Island  Ferry  Co.  55 
How.  154.  Nor  to  determine  the  right  to  wharfage.  Mayors. 
Mabie,  13  N.  Y.  151.  Nor  can  it  be  used  to  remove  a  cloud  on 
title.     Pixlcy  v.  Rockzvell,  i  Sheld.  267. 

Title  to  office  of  trustee  of  a  religious  corporation  cannot  be 
decided  in  an  action  of  ejectment.  Concord  Society  v.  Stanton,  38 
Hun,  I.  The  right  to  recover  pos.session  of  lands  for  non-payment 
of  rent  reserved  cannot  be  enforced  by  ejectment  unless  the  right 
of  re-entry  is  reserved.      Van  Rejisselaer  v.  Jeivett,  2  N.  Y.  141. 

The  State  cannot  maintain  an  action  to  recover  real  estate  be- 
longing to  a  municipality,  the  possession  of  which  has  been 
wrongfully  acquired  or  is  wrongfully  withheld.  People  v.  N.  V.  & 
Manhattan  Branch  R.  R.  Co.  84  N.  Y.  565  ;  affirming  22  Hun,  95. 
A  grant  of  a  right  to  erect  buildings  on  land  without  defining 
where,  or  the  space  to  be  occupied,  is  not  sufficiently  definite  to 
enable  a  lessee  to  maintain  ejectment  without  an  actual  entry  and 
location.  Jackson  v.  May,  16  Johns.  184.  Where  a  municipal 
corporation  acquires  title  to  land  for  a  public  purpose,  the  former 
owner  cannot  maintain  ejectment  on  the  ground  that  it  has  been 
diverted.  Stucet  v.  Buffalo,  N.  Y.  &  P.  R.  R.  Co.  79  N.  Y.  293  ; 
affirming  13  Hun,  643. 

Where  the  defendant  has  acquired  title  to  the  property  in  ques- 
tion by  eminent  domain  pending  the  action,  ejectment  cannot  be 
maintained,  and  a  judgment  that  the  plaintiff  recover  possession 
of  the  land  after  the  defendant's  corporate  existence  terminates, 
is  erroneous.  Jndge  v.  N.  V.  C.  etc.  R.  R.  Co.  56  Hun,  60  ;  S.  C. 
28  St.  Rep.  475,  9  N.  Y.  Supp.  158.  One  who  holds  an  absolute 
record  title,  but  only  as  security  for  a  debt,  cannot,  after  the  debt 
is  paid,   maintain   ejectment.      Sahler  v.  Signer,    37    Barb.    329. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         1 3 
Art.  4.      By  Whom  the  Action  Can  be  Maintained. 


Nor  will  the  action  lie  when  the  title  rests  on  an  assignment  made 
as  security  for  a  debt.  Murray  v.  Walker,  31  N.  Y.  399.  One 
who  takes  as  security  an  assignment  of  a  contract  of  purchase  can- 
not, on  default,  maintain  ejectment  against  his  assignors.  Camp- 
bell V.  Szuan,  48  Barb.  109.  One  having  a  naked  contract  to  pur- 
chase, which  is  silent  on  the  subject  of  possession,  cannot  maintain 
ejectment.  Kellogg  v.  Kellogg,  6  Barb.  116.  One  who,  at  the 
request  of  the  purchaser,  advances  part  of  the  purchase  money, 
and  as  security  for  its  repayment,  takes  an  absolute  conveyance 
of  the  land  from  the  vendor,  the  purchaser  taking  possession  and 
occupying  the  land  as  his  own  and  making  payments  on  account 
of  the  money  advanced,  is  a  mere  mortgagee,  and  cannot  main- 
tain ejectment  against  such  purchaser  until  he  has  first  foreclosed 
his  equity  of  redemption.  Carr  v.  Carr,  4  Lans.  314,  affirmed, 
52  N.  Y.  251. 

A  recovery  in  ejectment  for  land  taken  by  a  municipal  corpora- 
tion for  a  street,  cannot  be  had  where  the  evidence  shows  the 
proceedings  were  regular  and  the  possession  an  exercise  of 
dominion  by  the  defendant  lawfully.  Binghaniton  Opera  House 
Co.  V.  City  of  Binghamton,  88  Hun,  620,  34  Supp.  421,  68  St. 
Rep.  252. 

Where  the  terms  of  an  agreement  of  sale  have  been  fully  com- 
plied with,  the  vendor  cannot  maintain  ejectment  against  the 
grantees  of  the  purchaser.     House  v.  Howell,  6  N.  Y,  Supp.  799. 

A  person  who  enters  into  the  possession  of  land  under  a  con- 
tract to  purchase  it  cannot  without  surrendering  such  possession 
attack  or  dispute  the  title  of  his  vendor.  Rhoades  v.  Freeman,  9 
App.  Div.  20. 

ARTICLE  IV. 
Bv  Whom  the  Action  Can  be  Maintained,  §§  1500, 1501,  1680. 

Sub.  I.  One  or  more  joint  tenants.     §  1500. 

2.  gr.a.ntee  of  lands  held  adversely.     §  i5oi. 

3.  Persons  vested  with  right  to  immediate  possession. 

4.  Reversioner  may  bring  action  after  tenant's  default.     §  1680. 

Sub.  I.   One  or  More  Joint  Tenants,     g  ^500. 

§  1500.   Separate  action  by  joint  tenant  or  tenant  in  common. 

Where  two  or  more  persons  are  entitled  to  the  possession  of  real  property,  as 
joint  tenants  or  tenants  in  common,  one  or  more  of  them  may  maintain  such  an 


1 


14  ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  4.     By  Whom  the  Action  Can  be  Maintained. 


action,  to  recover  his  or  their  undivided  shares  in   the  property,  in   any   case 
where  such  an  action  might  be  maintained  by  all. 

Section  1 500  does  not  apply  to  property  bought  with  partner- 
ship funds  where  there  has  been  no  accounting  and  where  the 
rights  of  the  parties  to  the  real  estate  have  not  been  determined. 
Eisner  v.  Eisner,  5  App.  Div.  117. 

This  provision  is  new  and  designed  to  settle  conflicting  deci- 
sions on  the  subject.  The  authorities,  before  its  enactnaent,  must 
be  considered  in  the  light  of  this  section  as  it  now  stands.  Ten- 
ants in  common  may  bring  a  joint  action  in  ejectment.  Vander- 
bnrj  V.  Bradt,  2  Caines,  169;  Cole  v.  Irvine,  6  Hill,  634;  Mal- 
colm  V.  Rogers,  5  Cow.  188.  In  ejectment  for  breach  of  a  condi- 
tion subsequent,  all  the  original  grantors  or  their  heirs  should 
join.     Cook  v.  St.  PauVs  CJmrch,  5   Hun,  293  ;  affirmed,  Gj  N.  Y, 

594- 

Ejectment  for  property  belonging  to  a  firm  should  be  brought 

in  the  name  of  all  the  persons  in  whom  the  legal  title  is  vested. 
Sedgwick  &  Wait  on  Titles  to  Land,  §  221.  One  of  the  six  heirs 
may  maintain  an  action  of  ejectment  to  recover  an  undivided 
sixth.  Creger  v.  MeLaury,  41  N.  Y.  219;  afifirming  51  Barb. 
642;  Lord  SoutJuivipton  v.  Sample,  i  Johns.  Cas.  231.  In  eject- 
ment for  lands  held  in  common,  it  is  not  necessary  that  all  the 
tenants  in  common  should  unite  in  the  action.  Kellogg  v.  Kel- 
logg, 6  Barb.  116.  But  it  was  held,  before  the  present  Code,  that 
where  there  are  several  tenants  in  common,  a  joint  action  of  eject- 
ment could  not  be  maintained  by  two  or  more  less  than  the  whole 
number  ;  they  must  all  join  or  bring  separate  actions.  If  one  or 
more  refused  to  join  they  must  be  made  defendants.  Hasbrouck 
V.  Bunce,  62  N.  Y.  475.  There  cannot  properly  be  joined  several 
plaintiffs  claiming  under  distinct  titles  for  distinct  interests.  Peo- 
ple, ex.  rel.,  v.  Mayor,  10  Abb.  1 1 1.  Two  persons,  each  of  whom 
claims  the  whole  of  a  piece  of  land  by  a  title  hostile,  cannot  unite 
as  plaintiffs  in  ejectment,  against  a  third  party  in  possession,  and 
set  forth  the  title  of  each  plaintiff  in  a  separate  count.  Hiibbel  v. 
Lerch,  58  N.  Y.  237.  One  tenant  in  common  cannot  maintain 
ejectment  against  his  co-tenant  without  proof  of  actual  ouster,  or 
some  act  amounting  to  a  total  denial  of  his  right.  Sharp  v.  In- 
graham,  4  Hill,  1 16  ;  Edzvards  v.  Bishops  4  N.  Y.  61.  It  is  suffi- 
cient if  the  possession  is  adverse  and  exclusive.  Clason  v. 
Rankin,  i  Duer,  337  ;   Church  of  North  Greigv.  Johnson,  66  Barb. 


ACTIOxN  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).  I  5 

Art.  4.     By  Whom  the  Action  Can  be  Maintained. 

1 19.  But  heirs  obtaining  exclusive  possession  from  their  ancestor 
cannot  set  up  adverse  possession  against  co-heirs.  Phelan  v. 
Kelly,  25  Wend.  389. 

To  estabHsh  an  adverse  possession  by  one  tenant  in  common, 
such  as  will  affect  the  ouster  of  his  co-tenant,  notice  in  fact  to  the 
latter,  of  the  adverse  claim,  is  required,  or  unequivocal  acts,  open 
and  public,  making  the  possession  so  visible  and  hostile,  exclusive 
and  notorious,  that  notice  may  fairly  be  presumed.  Culver  v. 
Rhodes,  87  N.  Y.  348.  This  was  an  action  of  partition,  but  the 
principle  is  discussed,  and  the  following  authorities  collated  and 
commented  on  :  Florence  v.  Hopkins,  46  N.  Y.  182  ;  Clapp  v. 
BromagJiani,  Q)  Cow.  530;  Clark  v.  Crego,  47  Barb.  617;  Phelan 
V.  Kelly,  25  Wend.  395  ;  Grim  v.  Dyar,  3  Duer,  354;  Smith  v. 
Biirtis,  9  Johns.  174;  Jackson  v.  Brink,  5  Cow.  483  ;  Jackson  v. 
Tibbits,  9  Cow.  241  ;  Miller  v.  Piatt,  5  Duer,  272  ;  Siglar  v.  Van 
Riper,  10  Wend.  419. 

Where  one  co-tenant  is  in  actual  possession  of  the  premises  and 
has  in  various  ways  persisted  in  asserting  title  to  the  whole  premi- 
ses and  the  right  to  possession,  exclusive  of  the  other,  this  will 
entitle  the  co-tenant  to  maintain  ejectment.  Whiteman  v. 
Hyland,  40  St.  Rep.  575. 

See  §  368,  Code,  as  to  what  constitutes  adverse  possession  as 
between  co-tenants. 

Sub.  2.   Grantee  of  Lands  held  Adversely.     §  1501. 

§  1501.  [Am'd.  1882. J  Grantee  of  lands  held  adversely  may  maintain 
action. 

Such  an  action  may  be  maintained  by  a  grantee,  his  heir  or  devisee,  in  the 
name  of  the  grantor,  or  his  heir,  where  the  conveyance,  under  which  he  claims, 
is  void  because  the  property  conveyed  was  held  adversely  to  the  grantor.  The 
plaintiff  must  be  allowed  to  prove  the  facts  to  bring  the  case  within  this  section. 
In  such  an  action  a  judgment  against  the  plaintiff  shall  not  award  costs  to  the 
defendant;  but  where  the  defendant  is  entitled  to  costs  as  prescril^ed  in  section 
three  thousand  two  hundred  and  twenty-nine  of  this  act,  they  may  be  taxed, 
and  the  person  who  maintained  the  action  in  the  plaintiff's  name  may  be  com- 
pelled to  pay  the  same  as  prescribed  in  section  three  thousand  two  hundred  and 
forty-seven  of  this  act. 

Note  to  30  Abb.  N.  C.  at  page  175,  calls  attention  to  the  origin 
and  necessity  for  this  section.  Under  the  Revised  Statutes,  a 
deed  is  invalid  which  is  made  while  the  land  is  held  adversely  to 
the  grantor.     This  resulted  in  a  rule  that  an  assignee  of  a  right  of 


1 6    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  4.     By  Whom  the  Action  Can  be  Maintained. 


action  could  sue  at  law  only  in  the  name  of  his  assignor,  and  so 
far  as  related  to  the  right  of  a  grantee  to  sue  under  such  circum- 
stances, the  section  of  the  Code  providing  that  all  actions  must  be 
brought  in  the  name  of  the  real  party  in  interest  was  not  abrogated. 
This  section  only  provides  a  remedy,  it  does  not  make  a  deed 
valid  or  change  the  statute  in  that  regard.  Dazvlcy  v.  Brown,  4 
St.  Rep.  406. 

In  an  action  brought  under  this  section  all  of  the  grantors  in 
the  void  deed  must  be  joined  as  plaintiffs.  It  seems  that  the 
wife  of  the  grantor  must  be  joined  in  an  action  by  the  grantee  in 
such  case.     Crowley  v.  Murphy,  11  Misc.  579. 

In  case  of  deed  of  land  held  adversely  under  an  agreement  in 
pursuance  of  which  the  deed  was  given,  the  grantee  may  bring 
suit  in  the  name  of  his  grantor  against  those  holding  adversely, 
and  aeainst  others  than  those  as  to  whom  the  deed  is  void,  in  his 
own  name.  Cormvell  v.  Clement,  87  Hun,  50,  67  St.  Rep.  482, 
33  Supp.  866. 

As  to  what  constitutes  adverse  possession  under  the  statute,  see 
Dazvley  v.  Broivn,  21  Alb.  L.  J.  134;  HiginbotJiam  v.  Stoddard, 
72  N.  Y.  94  ;  Matter  of  Department  of  Public  Parks,  73  N.  Y.  560. 
The  authorities,  under  the  Revised  Statutes  and  the  old  Code 
of  Procedure,  held  that  the  grantor,  in  a  conveyance  of  premi- 
ses, held  adversely,  could  maintain  ejectment,  notwithstanding 
such  deed,  and  that  a  recovery  by  him  would  enure  to  the  benefit 
of  his  grantee,  such  deed  being  valid  against  all  the  world  except 
the  person  holding  adversely.  Jackson  v.  Vredenbiirgh,  i  Johns. 
159  ;  Williams  v.  Jackson,  5  Johns.  489  ;  Livingston  v.  Proseus,  2 
Hill,  526  ;  Hamilton  v.  Wright,  37  N.  Y.  502.  See,  also,  for  deci- 
sions under  section  1 1 1  of  Code  of  Procedure,  for  which  this  is  a 
substitute,  Lozvber  v.  Kelly,  9  Bosw.  494 ;  Towle  v.  Smith,  2 
Robt.  489. 

The  grantee  of  land  held  adversely  to  the  grantor  cannot  main- 
tain ejectment  in  his  own  name.  Lozvber  v.  Kelly,  9  Bosw.  494, 
supra  ;  De  Silva  v.  Flynn,  9  Civ.  Pro.  426.  Such  an  action  does  not 
abate  by  the  death  of  the  grantee.  It  may  be  continued  by  his  de- 
visees. Ward  V.  Reynolds,  2^  Hun,  385.  It  is  no  defence  in  an 
action  of  ejectment  brought  for  the  benefit  of  grantees  in  the 
name  of  the  grantor,  that  the  deed  to  the  grantees  was  given  in 
violation  of  the  .statute  against  sale  of  lands  held  adversely.  If 
the  deed  is  void,  the  grantor's  title  remains  valid  and  efTectual, 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         1 7 
Art.  4.      By  Whom  the  Action  Can  be  Maintained. 


and  he  may  rely  upon  it  against  trespassers  and  occupants  with- 
out title.  If  it  be  only  void  as  to  the  defendants,  and  good  as  to 
the  other  parties,  the  Code  allows  an  action  in  the  name  of  the 
grantor  for  the  benefit  of  the  grantee,  and  in  either  event  the 
grantor's  title  can  be  asserted  and  established.  Chamberlain  v. 
Taylor,  92  N.  Y.  348,  reversing  26  Hun,  601.  The  section  adds 
nothing  to  the  right  of  the  grantor,  and  where  the  grantor  did  not 
have  such  an  estate  in  the  lands  as  to  maintain  the  action,  it  can- 
not be  maintained  for  the  benefit  of  his  grantee.  Chamberlain  v. 
Taylor,  105  N.  Y.  185.  Where  a  deed  from  several  tenants  in 
common  is  void  by  reason  of  adverse  possession  in  a  third  person 
claiming  under  a  title  hostile  to  the  grantors,  the  grantee  under 
the  void  deed  may  maintain  an  action  of  ejectment  in  the  name 
of  his  grantors,  and  he  is  authorized  to  use  their  names  without 
special  consent.  Hasbrouek  v.  Bunce,  62  N.  Y.  475  ;  followed 
Wardv.  Reynolds,  25  Hun,  385.  As  to  when  action  is  properly 
brought  in  name  of  grantor,  see  Van  Voorhis  v.  Kelly,  31  Hun, 
293.  A  conveyance  made  under  an  order  of  the  court  is  not 
within  the  statute.  Christie  v.  Gage,  71  N.  Y.  189.  The  right  to 
bring  the  action  in  the  name  of  the  grantor  was  formerly  limited 
to  the  first  grantee,  and  did  not  extend  to  a  remote  grantee  of 
the  premises,  and  the  action  must  be  brought  in  the  name  of  the 
individual  grantor  bringing  it,  and  plaintiff  mu.st  stand  or  fall  by 
his  title.  Smith  v.  Long,  12  Abb.  N.  C.  113.  But  see  language 
of  section  as  it  now  stands. 

Where  a  conveyance  is  made  of  land  which,  owing  to  a  dis- 
puted boundary  line,  is  not  at  the  time  of  conveyance  in  the 
actual  possession  of  the  grantor,  an  action  to  recover  the  disputed 
portion  may  be  maintained  by  the  grantee  in  his  own  name  and 
this  section  is  not  applicable.  Dansiger  M.Boyd,  120  N.  Y.  628, 
30  St.  Rep.  889,  affirming  52  N.  Y.  Sup.  537,  12  St.  Rep.  64. 
Where  defendants  admit  that  at  the  time  of  the  conveyance  of 
the  land  they  claimed  adverse  possession,  it  is  proper  the  action 
should  be  commenced  in  the  name  of  the  grantors  for  the  benefit 
of  their  grantee.     Doherty  v.  Mat  sell,  119  N.  Y.  646. 

A  deed  of  lands  which  at  the  time  are  held  adversely  by  an- 
other person,  is  only  inoperative  as  to  the  person  holding  ad- 
versely and  those  claiming  under  him  ;  it  is  good  as  between  the 
parties  to  it,  and  the  grantor  has  no  right  of  action  to  redeem 
from  the  foreclosure  of  a  prior  mortgage  of  which  he  was  not 
[Special  Actions  —  2.] 


1 8         ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 
Art.  4.      By  Whom  the  Action  Can  be  Maintained. 

made  a  party.  Johnson  v.  Snell,  34  St.  Rep.  177,  citing  Pcarce  v. 
Moore,  114  N.  Y.  256,  23  St.  Rep.  196,  which  distinguishes  CJiain- 
bcrlain  v.  Taylor,  92  N.  Y.  348. 

Where,  after  an  assignment  in  bankruptcy,  the  assignor's  inter, 
est  as  a  tenant  in  common  is  set  off  to  him  in  an  action  of  parti- 
tion to  which  the  assignee  is  not  a  party,  a  subsequent  purchaser 
at  a  sale  by  the  assignee  of  the  assignor's  undivided  interest,  can- 
not maintain  ejectment  for  the  benefit  of  his  grantee  against  the 
grantee  of  the  assignor  for  the  recovery  of  a  particular  parcel. 
Smith  V.  WJiittemore,  15  Week.  Dig.  70.  The  amendment  of  1882 
relative  to  costs,  renders  obsolete  Hamilton  v.  Wright,  37  N.  Y. 
502. 

Sub.  3.   Persons  Vested  with  Right  to  I:vimediate  Possession. 

It  is  said  that  "  as  a  general  rule,  any  person  owning  an  "estate 
in  lands  in  fee,  for  life,  or  for  years,  having  a  present  right  of 
entry,  or  any  person  vested  with  a  right  to  the  immediate  posses- 
sion incident  to  some  corporeal  estate  or  interest  in  lands,  may 
maintain  an  action  in  the  nature  of  ejectment."  Sedgwick  & 
Wait  on  Titles  to  Land,  p.  92.  The  people  may  maintain  eject- 
ment. Jackson,  ex.  dem.  Miller,  v.  Winslozv,  2  Johns.  81  ;  People 
V.  Maiiran,  5  Den.  389  ;  People  v.  Rector,  etc.  Trinity  Church,  22 
N.  Y.  44  ;  People  v.  Va)i  Rensselaer,  9  N.  Y.  3 19  ;  People  v.  Denison, 
17  Wend.  312  ;  People  v.  Conkliji,  2  Hill,  67  ;  People  v.  Livingston, 
8  Barb.  253.  It  was  held  before  the  Code  of  Civil  Procedure  that 
a  guardian  in  socage  alone  could  maintain  ejectment  on  behalf  of 
an  infant.  Byrne  v.  Van  Hoesen,  5  Johns.  66  ;  Holmes  v.  Seeley, 
17  Wend.  75  ;  see  Seaton  v.  Davis,  i  T.  &  C.  91  ;  Cagger  v.  Lans- 
ing, 64  N.  Y.  417.  Section  1686,  however,  now  provides  that  the 
infant  may  bring  any  action  provided  for  by  the  title  of  which  it 
is  a  part,  which  includes  the  provisions  relating  to  ejectment. 
See  Carr  v.  Huff,  10  N.  Y.  Supp.  361  ;  32  St.  Rep.  26 ;  57  Hun,  20. 
The  committee  of  a  lunatic  cannot  maintain  ejectment.  Petrie  v. 
Shoemaker,  24  Wend.  85  ;  McKillip  v.  McKillip,  8  Barb.  552  ;  Bur- 
nett V.  Bookstaver,  10  Hun,  481  ;  Lane  w.  Schemer  horn,    i  Hill,  97. 

An  executor  may  maintain  ejectment  for  lands  which  were  held 
by  his  testator  for  a  term  of  years,  as  such  term  is  a  chattel  real 
and  assets  to  be  administered  by  him  ;  Moshcr  v.  Yost,  33  Barb. 
277  ;  but  he  cannot  maintain  the  action  as  to  the  fee.  Van  Rens- 
selaer V.  Hayes,  5  Den.  477. 


ACTKJN  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).  19 

Art.  4.     By  Whom  the  Action  Can  be  Maintained. 

A  ic'siid  que  trust,  of  a  trust  not  prescribed  by  statute,  may 
maintain  this  action.  Van  Dcuscii  v.  Trustees  of  Presbyterian  Con- 
gregation, 3  Keyes,  550.  See,  however,  Clark  v.  Crego,  47  Barb. 
599,  affirmed,  51  N.  Y.  646.  Where  lands  have  been  devised  to 
trustees  with  power  of  conversion  and  to  apply  the  income,  the 
trustees  may  maintain  ejectment.  McLean  v.  MeDonald,  2  Barb. 
534.  But  not  in  case  where  the  deed  of  trust  does  not  create  a 
valid  trust  or  convey  the  legal  title.  Heerinans  v.  Robertson,  3 
Hun,  464,  affirmed,  64  N.  Y.  332.  Where  the  demise  to  executors 
does  not  authorize  them  to  receive  the  rents  and  profits,  nor  hence, 
to  convey  the  legal  title,  they  cannot  maintain  ejectment.  Cham- 
berlain v.  Taylor,  7  St.  Rep.  517;  s.  c.  105  N.  Y.  185.  Where  a 
purchaser  on  execution  sale  dies  previous  to  the  giving  of  the 
deed  which  goes  to  his  personal  representatives,  they  may  bring 
ejectment  without  joining  the  heirs.  Reynolds  v.  Darling,  42 
Barb.  418. 

A  tenant  b}-  the  curtesy  may  maintain  the  action.  Jackson  v. 
Leek,  19  Wend.  339.  As  to  the  right  of  receiver  to  maintain  the 
action,  see  Porter  v.  Williams,  9  N.  Y.  142  ;  Cliautauqiia  Bank  v. 
Risley,  19N.  Y.  374;  Scott  v.  Elmore,  10  Hun,  68  ;  Wingv.  Disse, 
15  Hun,  190;  and  §§  2467,  2468,  Code  of  Civil  Procedure.  The 
owner  of  a  conditional  fee  may  maintain  ejectment.  Olmsted  v. 
Harvey,  i  Barb.  102.  Loan  commissioners  can  remove  by  eject- 
ment a  party  who  holds  over  after  notice  for  them  to  quit. 
Candee  v.  Hayzvard,    37  N.  Y.  653. 

The  owner  of  land  appropriated  to  public  use  may  maintain 
ejectment  against  a  permanent  encumbrancer.  Lozierw.  N.  Y.  C. 
R.  R.  Co.  42  Barb.  465.  A  purchaser  at  foreclosure  sale  is  entitled 
to  the  action.  Clute  v.  J'oris,  31  Barb.  511.  A  purchaser  at  a 
tax  sale  who  is  in  actual  occupation,  it  is  said,  can  maintain  the 
action  against  an  intruder,  who  is  a  mere  trespasser,  even  though 
the  sale  is  irregular  and  his  deed  void.  Thompson  v.  BnrJians,  61 
Barb.  260.  Whether  a  mortgagee  in  possession  after  default  in  a 
loan  commissioner's  mortgage  may  maintain  ejectment,  see  Olni- 
sted  V.  Elder,  5  N.  Y.  144  ;  Pellw  Ulmar,  18  N.  Y.  139. 

A  landlord  may  maintain  ejectment  against  any  one  in  posses- 
sion after  the  determination  of  the  particular  estate  by  which  he 
gained  it,  without  notice  to  quit.  Livingston  v.  Tanner,  14  N.  Y. 
64;  Smithv.  Little  field, '^\  N.  Y.  539.  And  where  a  tenant  holds 
over  after  the  expiration  of  his  term,  the  landlord  may,  at  his  elec- 


20         ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT.) 
Art.  4.     By  Whom  the  Action  Can  be  Maintained. 

tion,  treat  him  as  a  tenant  from  year  to  year,  or  as  a  trespasser, 
and  maintain  ejectment.  ScJmyler  v.  S}nilh,  51  N.  Y.  309.  The 
grantor  in  a  deed,  on  condition  that  no  intoxicating  hquors  shall 
be  manufactured  or  sold  on  the  premises  conveyed,  the  convey- 
ance to  be  void  in  case  of  a  breach,  can  maintain  ejectment  with- 
out demand  of  possession.  P/uml?v.  T^/dds,  41  N.Y.  442.  Where 
lands  are  conveyed  subject  to  certain  conditions  reserving  a  right 
of  re-entry,  the  original  grantor  or  his  heirs  can  maintain  eject- 
ment. Jackson  V  Topping,  i  Wend.  388  ;  Nicoll  v.  N.  V.  &  Erie 
R.  R.  Co.  12  N.  Y.  121.  In  such  a  case  all  the  original  grantors 
or  their  heirs  must  join  as  plaintiffs.  Cook  v.  Wardens.,  etc.  of  St. 
PauVs  Church,  5  Hun,  293. 

Where  real  estate  is  devised  to  executors  as  such,  although  they 
are  also  named  in  the  will  as  trustees,  they  may,  as  executors, 
maintain  ejectment.  Landon  v.  TownsJiend,  14  Supp.  522,  38  St. 
Rep.  714. 

The  action  lies  by  the  grantor  where  the  condition  is  that  on 
violation  of  covenants,  as  not  to  erect  a  certain  structure,  the  land 
reverts  to  the  grantor.  Gilbert  v.  Petelcr,  38  N.  Y.  165.  The 
action  will  lie  for  lands  admeasured  as  dower.  Borst  v.  Griffin,  9 
Wend.  307  ;  Oothoiit  v.  Ledings,  1 5  Wend.  410  ;  Ellicott  v.  Hosier, 
7  N.  Y.  201.  One  in  possession  of  land  under  a  contract  of  pur- 
chase may  maintain  the  action  against  a  stranger  to  the  title,  who 
wrongfully  enters  and  withholds  possession.  MurpJiy  v.  Loomis, 
26  Hun,  659. 

A  contract  dated  at  a  future  day,  leasing  lands  for  a  term  com- 
mencing at  such  day,  gives  the  lessee,  when  the  day  arrives,  right 
of  possession  and  a  right  to  maintain  ejectment  against  a  stranger 
wrongfully  withholding.  Trnll  \.  Granger,  8  N.  Y.  115.  Where 
a  grantor  conveys,  excepting  a  portion  included  in  a  highway,  he 
may  maintain  ejectment  against  the  parties  for  encroaching  upon 
it  or  exclusively  occupying  it.  Etz  v.  Daily,  20  Barb.  32.  The 
action  lies  by  the  owner  of  the  fee  against  one  who  exclusively 
holds  part  of  a  highway.  Brown  v.  Galley,  Hill  &  Den.  Sup.  308. 
The  owner  of  a  fee  may  maintain  ejectment  against  a  person  hav- 
ing a  private  right  of  way  over  it,  where  such  person  claims  entire 
possession.     Strong  v.  City  of  Brooklyn,  68  N.  Y.  i. 

Where  the  deed  conveying  premises  to  a  religious  corporation, 
reserved  the  right  to  build  a  basement  story  to  be  used  solely  for 
the  purposes  of  a  school,  Jield  that  ejectment  lay  in  favor  of  the 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  4.     By  Whom  the  Action  can  be  Maintained. 

corporation  against  persons  using  the  basement  for  other  liian 
school  purposes.  The  judgment  should  award  possession  subject 
to  the  easement.     Reformed  Church  v.  Schoolcraft,  65  N.  Y.  135. 

A  purchaser  at  sheriff  sale  of  the  interest  of  a  mortgagor  may 
recover  against  the  latter  in  ejectment.  Jackson  v.  Davis,  iS 
How.  7.  One  who  has  been  in  possession  for  several  years  under 
color  of  title  may  recover  against  a  mere  intruder.  Jackson  v. 
Harder,  4  Johns.  202.  The  lessee  of  a  married  woman  may 
maintain  ejectment  against  her  husband.  Vaiidervoort  w.  Gould, 
3  Trans.  App.  357.  In  an  action  to  recover  property,  the  alleged 
separate  estate  of  the  wife,  she  must  sue  alone  without  her  hus- 
band. Hillinan  v.  Hillnian,  14  How.  456  ;  Dauby  v.  Callaghan, 
16  N.  Y.  71.  See  §  450  of  Code.  The  wife  may  sue  the  hus- 
band in  ejectment  to  recover  the  possession  of  her  property 
wrongfully  detained  by  him.  Woodv.  Wood,  83  N.  Y.  575,  affirm- 
ing   18  Hun,  350;  Berdellv.  Parkhurst,    19  Hun,  358. 

A  vendor  under  contract  for  sale  of  lands  may  maintain  eject- 
ment against  a  vendee  in  possession  on  the  failure  to  comply  with 
the  contract,  and  no  demand  or  notice  to  quit  need  be  given. 
Pratt   v.  Peckhani,  44   Hun,    247. 

The  endowed  mother  of  an  infant,  who  owns  real  estate  as 
general  guardian  of  the  infant,  with  the  rights,  powers  and  duties 
of  a  guardian  1)1  socage  has  the  right  to  the  possession  of  such  real 
estate,  and  it  is  her  duty  to  obtain  such  possession,  and  she  may 
bring  suit  therefor,  and  employ  counsel,  and  agree  as  to  his  com- 
pensation, lu  re  Hynes,  105  N.  Y.  560.  The  devisee  of  an  inter- 
est in  a  mortgage  cannot  maintain  ejectment.  Beal  v.  Miller,  i 
Hun,  390.  Where,  in  ejectment  by  a  lessee,  his  title  expires 
durine  the  action,  he  is  entitled  to  recover  the  value  of  the  lease 
from  the  time  of  unlawful  entry,  for  the  balance  of  his  term. 
IVoodhullv.  Rosenthal,  61  N.  Y.  382. 

One  who  has  been  put  in  possession  of  lands  and  is  entitled 
to  possession  under  a  contract  of  sale,  may  maintain  ejectment 
against  a  stranger  who  wrongfully  enters  upon  such  lands,  and 
withholds  possession  thereof.     Murphy  v.  Looinis,  26  Hun,  659. 

The  owner  of  the  fee  can  maintain  an  action  of  ejectment  in 
case  of  ouster,  where  the  lands  are  subject  to  the  right  of  the  pub- 
lic to  use  as  a  highway.  Westlake  v.  Kock,  8  N.  Y.  Supp.  665  ; 
s.  c.  29  St.  Rep.  283. 

As  to  the  right  of  the  Seneca   Indians  to  maintain   ejectment 


22         ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  5.   What  is  Necessary  to  Entitle  Plaintiff  to  Recover. 

with  reference  to  their  reservation,  see  Seneca  Nation  v.  Christy, 
49  Hun,  524,  18  St.  Rep.  881. 

As  to  the  right  of  the  owner  of  land,  bordering  on  tide  water 
or  navigable  water,  to  maintain  ejectment,  see  Sissoti  v.  Cuin- 
mings,  35  Hun,  22  ;  s.  c.  106  N.  Y.  56,  8  St.  Rep.  573. 

As  to  when  a  vendor  can  maintain  ejectment  against  a  vendee 
in  possession,  who  has  failed  to  comply  with  the  terms  of  the  con- 
tract, see  Pratt  v.  Peckhani.  44  Hun,  247. 

Sub.  4.    Reversioner   May    Bring    Action   after  Tenant's  De- 
fault. 

^  1680.  Reversioner,  etc.,  may  bring  action  after  tenant's  default. 

Where  a  tenant  for  life,  or  for  a  term  of  years,  suffers  judgment  to  be  taken 
against  him,  by  consent  or  by  default,  in  an  action  of  ejectment,  or  an  action 
for  dower,  the  heir  or  person  owning  the  reversion  or  remainder,  may,  after  the 
determination  of  the  particular  estate,  maintain  an  action  of  ejectment  to 
recover  the  property. 

This  section  is  found  under  provisions  applicable  to  two  or 
more  of  the  actions  specified  in  this  title  in  chapter  twelve,  but  as 
it  provides  only  for  the  action  of  ejectment  it  is  inserted  here  as 
well  as  in  its  proper  place. 

ARTICLE  V. 
What  is  Necessary  to  Entitle  Plaintiff  to  Recover. 

Sub.  I.  Plaintiff  must  recover  o.\  the  strength  of  his  own  title. 
2.  When  possession  gives  presumption  of  title. 

Sub.  I.   Plaintiff    Must    Recover   on  the  Strength    of  his 

OWN  Title. 

Plaintiff  must  recover  on  the  strength  of  his  own  title.  He 
cannot  take  anything  from  defects  in  defendant's  title.  Roggcn 
v.  Avery,  63  Barb.  65  ;  Richardson  v.  Piilver,  6^,  Barb.  67  ;  Henry 
V.  Reichert,  22  Hun,  394;  Wallace  v.  Szvinton,  64  N.  Y.  188; 
Bowers  v.  Arnoux,  33  Super.  Ct.  530;  Lamont  v.  Cheshire,  65 
N.  Y.  30  ;  Doherty  v.  Matsell,  \  i  Civ.  Pro.  R.  392  ;  Brady  v. 
Hennion,  8  Bosw.  528;  Chamberlain  v.  Taylor,  105  N.  Y.  185; 
Buttery  v.  R.,  W.  &  O.  R.  R.  Co.  14  St.  Rep.  131. 

Plaintiff  must  depend  on  the  strength  of  his  own  title,  not  on 
the  weakness  of  his  adversary,  and  must  show  his  right  to  imme- 
diate possession,  and  that  he  was  seized  or  possessed  of  the  premi- 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    23 


Art.  5.     What  is  Necessary  to  Entitle  Plaintiff  to  Recover. 

ses  within  twenty  years  before  the  commencement  of  the  action. 
He  must  show  possession  under  his  title,  but  such  possession  will 
be  presumed.  Dolurty  v.  Matseil,  3  St.  Rep.  517.  The  rule  that 
plaintiff  must  recover  upon  the  strength  of  his  own  title,  and  that 
he  can  take  nothing  from  defects  in  defendant's  title,  is  reiterated 
in  Roberts  v.  Baiimgartcii,  1 10  N.  Y.  380;  s.  c.  18  St.  Rep.  162, 
afifirming  51  N.  Y.  Supr.  482  ;  see,  also,  Dohcrty  v.  Matscll,  16 
St.  Rep.  593  ;  Finclitc  v.  Sinnott,  24  St.  Rep.  28. 

Plaintiff  must  recover  upon  the  strength  of  his  own  title,  not 
upon  the  weakness  of  that  of  the  defendant  ;  but  he  measures  his 
title  with  that  of  the  defendant,  and  if  it  is  better  in  respect  of  his 
right  of  possession  he  prevails  because  of  its  sufficient  strength. 
McRobcrts  v.  Bergman,  132  N.  Y.  73,43  St.  Rep.  559  ;  Toxunshend 
V.  TJiompson,  18  Supp.  870,  46  St.  Rep.  847;  Snyder  \.  Church, 
70  Hun,  428,  53  St.  Rep.  674,  24  Supp.  337. 

An  action  to  recover  possession  of  real  property  may  be  main- 
tained by  one  ha\'ing  only  an  equitable  title,  where  all  the  parties 
are  brought  before  the  court.  Boyd  v.  Boyd,  12  Misc.  119,  33 
Supp.  74,  66  St.  Rep.  731.  But  it  is  held  that  plaintiff  in  eject- 
ment can  recover  only  on  proof  of  his  legal  title.  Mangain  v. 
President  of  Sing  Sing,  86  Hun,  604,  33  Supp.  843,  6']  St.  Rep. 
454;  Goodhart  v.  Street.  12  Misc.  360,  33  Supp.  687,  6-j  St.  Rep. 
300. 

The  possessor  of  lands  can  be  evicted  therefrom  by  one  claim- 
ing them  only  by  proof,  not  only  of  title  in  the  claimant,  but  of 
paramount  title.     Morey  v.  Village  of  Troy,  12  Week.  Dig.  55. 

A  right  of  possession  in  prcpsenti  is  necessary  to  be  shown. 
Bryan  v.  Butts,  27  Barb.  503  ;  People,  ex  rel.,  v.  Mayor,  10  Abb. 
Ill  ;  Me  Lean  v.  McDonald,  2  Barb.  534;  Hiinter  v.  Trustees  of 
Sandy  Hill,  6  Hill,  407  ;  Trull  v.  Granger,  8  N.  Y.  115;  Doherty 
V.  Matseil,  1 1  Civ.  Pro.  R.  392.  Plaintiff  must  not  only  establish 
the  right  to  possession  in  himself,  but  show  the  defendants  in 
possession,  or  claiming  title,  when  the  action  was  commenced. 
People  V.  Van  Rensselaer,  9  N.  Y.  291. 

The  burden  is  upon  the  plaintiff  of  showing  either  a  prior  actual 
possession,  or  paramount  legal  title,  and  right  to  immediate  pos- 
session. Layman  v.  Whiting,  20  Barb.  559;  Bryan  v.  Butts,  27 
Barb.  503;  Bartow  v.  Draper,  5  Duer,  130;  Pierce  v.  Tuttle,  53 
Barb.  155.  If  plaintiff  has  no  title  the  title  of  defendant  is  not 
important.     Szveet  v.  Buffalo,  N.  Y.  &  P.  R.  R.  Co.  79  N.  Y.  293. 


24    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  5.     What  is  Necessary  to  Entitle  Plaintiff  to  Recover. 

But  when  plaintiff  shows  prior  possession,  a  defendant  who  enters 
as  an  intruder  without  right  cannot  defend,  but  where  the  lands 
are  vacant  he  may  defend,  unless  title  is  shown  by  plaintiff. 
TJiompson  v.  Burhans,  61  N.  Y.  52,  reversing  61  Barb.  260,  and  79 
N.  Y.  93,  reversing  15  Hun,  580. 

As  against  a  defendant  who  is  in  possession  under  a  title  which 
is  invalid,  plaintiff  may  recover  upon  proof  of  prior  occupation 
and  use,  without  proof  of  paper  title  in  himself  and  ouster  by 
defendant.  Hopkins  v.  Mason,  42  How.  115.  But  the  general 
rule  is  as  above,  that  proof  of  title  in  plaintiff  must  be  by  posses- 
sion or  paper  title.  Lane  v.  Gould,  10  Barb.  254 ;  Safford  v. 
Hynds,  39  Barb.  625;  Cliitev.  F^;7>,  31  Barb.  511;  Downing  \. 
Miller,  33  Barb.  386. 

Sub.  2.   When  Possession  Gives  Presumption  of  Title. 

If  plaintiff  shows  legal  title,  he  will  be  presumed  to  have  been 
in  possession  within  the  time  required  by  law,  unless  twenty  years' 
adverse  possession  is  shown.  Porter  v.  MeGratk,  41  Super.  Ct. 
84;  DoJiertyv.  Quinn,  3   St.  Rep.  517. 

A  prior  possession  under  claim  of  right  prevails  over  a  subse- 
quent possession  without  lawful  title,  where  no  proof  of  title  is 
made  on  either  side.  SviitJi  v.  Lorillard,  10  Johns.  339  ;  Jackson 
V.  RigJitmyre,  16  Johns.  314. 

Proof  of  a  patent  from  the  State,  and  mesne  conveyances  to 
himself,  is  prima  facie  evidence  sufficient  to  entitle  plaintiff  to 
recover,  where  the  premises  are  unoccupied.  Becker  v.  Howard^ 
47  How.  423  ;  reversed,  4  Hun,  359,  and  affirmed,  66  N.  Y.  5. 
Where  one  has  color  of  title  by  deed  to  a  farm  or  lot,  possession 
of  part  is  deemed  possession  of  the  whole,  but  this  is  not  appli- 
cable where  the  land  is  a  large  tract  not  capable  of  being  used 
together.      Thompsoii  v.  BiirJians,  61  N.  Y.  52. 

To  recover  in  ejectment  under  a  purchase  at  a  sheriff's  sale,  on 
a  judgment  against  defendant,  the  judgment  and  judgment-roll 
must  be  shown,  and  that  defendant  was  in  possession,  and  the 
title  acquired  by  the  sheriff's  sale.  Tozunshendv.  lVesso?i,  4  Duer, 
342  ;  Dickenson  v.  Smith,  25  Barb.  103  ;  Smith  v.  Colvin,  17  Barb. 
157;  Kclloggx.  Kellogg,  6  Barb.  1 16.  Notice  to  quit,  or  demand  of 
possession,  is  not  necessary,  unless  the  relation  of  landlord  and 
tenant  has  existed.  Hotalingv.  Hotaling,  ^"j  Barb.  163  ;  Wood  v. 
Wood,  18  Hun,  350;  affirmed,  83  N.  Y.  575  ;  Jackson  v.  Tyler,  2 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    25 

Art.  5.     What  is  Necessary  to  Entitle  Plaintiff  to  Recover. 

Johns.  444  ;  Jackson  v.  Deyo,  3  Johns.  422  ;  Jackso7i  v.  Aldrich,  13 
Johns.  106.  If  neither  party  can  show  title,  the  one  claiming  under 
the  first  possessor  may  recover  ;  facts  insufficient  to  establish  an 
adverse  possession  may  be  sufificient  to  support  ejectment  against 
a  third  person.     Hunter  v.  Siarm,  26  Hun,  529. 

An  undisturbed  possession  for  thirty-eight  years  is  such  title  as 
will  support  ejectment  against  one  who  had  recovered  in  a  former 
ejectment  by  default,  and  turned  the  plaintiff  out  of  possession, 
and  this,  though  the  plaintiff's  possession  did  not  correspond  with 
the  paper  title.  Wrigk'  v.  Dieffendorf,  3  Johns.  269.  And  a  prior 
possession  for  less  than  twenty  years  will  support  ejectment  against 
one  who  shows  no  lawful  title.  Smith  v.  Lorillard,  10  Johns. 
338;  Hopkins  V.Mason,  61  ^3.rh.4.6g;  Rodic  v.  Sedgwick,  ^^^V>2ix\i. 
319.  It  is  said  that  a  mere  possession,  without  claim  of  title,  ^\•ill 
not  support  ejectment,  i  Caines,  190,  n.  But  see  Murray  v. 
Hazen,  2  Johns.  22  ;  Murray  v.  Demi,  5  Cow.  200  ;  Dey  v.  Alver- 
son,  9  Wend.  222  ;  Whitney  v.  Wright,  15  Wend.  171  ;  Holmes  v. 
Seeley,  ij  Wend.  75.  A  possession  for  eight  or  ten  years,  under 
color  of  title,  will  support  ejectment  against  a  mere  intruder. 
Duncan  v.  Harder,  4  Johns.  202.  But  a  mere  possessor}-  title 
which  has  been  abandoned  will  not  support  the  action  ;  Livingst07i 
V.  Walker,  7  Cow.  637;  Whitney  v.  Wright,  15  Wend.  171  ;  and 
where  possession  is  relied  on  as  the  basis  of  the  action,  it  must  be 
clearly  and  unequivocally  proved.  Ludlozu  v.  Myers,  3  Johns. 
388.  Defendant's  admission  that  he  went  into  possession  under 
plaintiffs,  will  enable  plaintiff  to  recover.  SagoJiarie  v.  Dobbin,  3 
Johns.  223. 

When  neither  party  can  prove  a  legal  title,  the  party  showing 
himself,  or  those  under  whom  he  claims,  in  prior  possession,  can 
recover  against  a  mere  intruder,  or  one  whose  title  is  founded  on 
a  later  possession.  Hunter  v.  Star  in,  26  Hun,  529.  When  plain- 
tiff shows  an  adverse  possession  for  twenty  years  he  is  entitled  to 
recover  even  against  a  defendant  whose  possession  for  a  less  period 
is  lawful  ;  Jackson  v.  Dieffendorf,  3  Johns.  269  ;  Jackson  v.  Oltz, 
8  Wend.  440  ;  but  adverse  possession  for  a  less  period  than  twenty 
years  does  not,  of  itself,  authorize  a  recovery  against  a  defendant 
lawfully  in  possession.  Jackson  v.  Rightmyre,  16  Johns.  314; 
Grew  V.  Swift,  46  N.  Y.  204. 

Plaintiff  in  order  to  recover  mu.st  show  an  immediate  right  to 
possession.     Where,  therefore,  the  defendant  shows  a  possession 


26    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  6.     Who  May  be  Defendants  and  Who  Must  be  Joined  as  such. 

founded  upon  the  sale  of  the  premises  for  a  term  of  years,  for  an 
unpaid  assessment,  Jield  that  such  possession  was  not  adverse  to 
but  consistent  with  the  plaintiff's  ownership  in  fee  and  that  plain- 
tiff could  not  maintain  the  action.  Moore  v.  Tozvnshend,  54  Supr. 
Ct.  245  ;  s.  c.  10  St.  Rep.  463. 

Possession  of  land  \%  prima  facie  evidence  of  title  and  sufficient 
against  the  defendant,  who  is  unable  to  show  a  better  title.  The 
benefit  of  such  a  possession  is  not  lost  to  the  possessor,  if  he  leaves 
the  land  temporarily  vacant,  and  a  city  as  well  as  an  individual 
may  obtain  title  by  adverse  possession,  and  such  title  cannot  be 
questioned  by  one  who  occupies  the  attitude  of  a  mere  subsequent 
intruder  without  any  title ;  the  fact  that  he  purchased  the  same 
from  persons  who  also  had  no  title,  in  no  way  fortifies  his  posi- 
tion.    Mayor,  etc.,  of  New  York  v.  Carleton,  113  N.  Y.  284. 

The  same  rule  applies  to  the  acquiring  of  title  by  the  State. 
Eldridge  v.  City  of  Bingliamton,  120  N.  Y.  309. 

As  to  what  establishes  possession  under  claim  of  title,  so  as  to 
entitle  the  defendant  to  judgment,  see  Carletonv.  Darcy^  90  N.  Y. 
566. 

Where  plaintiff  deduced  his  title  from  a  source  conceded  to  be 
sufificient,  and  proved  the  possession  of  two  intermediate  grantors, 
it  was  held  that  v.-as  sufificient  to  cast  upon  defendant  the  burden 
of  establishing  title  by  adverse  possession.  Arents  v.  Long  Island 
R.  R.  Co.  89  Hun,  126,  69  St  Rep.  i,  34  Supp.  1085. 

Possession  of  land  is  always  presumed  to  be  in  subordination  to 
the  true  title  and  one  who  claims  to  have  acquired  title  by  adverse 
possession,  must  show  that  he  or  his  predecessors  in  interest  held 
the  land  in  hostility  to  the  true  owner  claiming  title  thereto. 
Doherty  v.  Mat  sell,   119  N.  Y.  646. 

ARTICLE  VI. 

Who   May  be  Defendants  and  Who  Must  be  Joined  as 

Such.    §§  1502,  1503. 

g  1502.  Against  whom  action  to  be  brought. 

Where  the  complaint  demands  judgment  for  the  immediate  possession  of  the 
property,  if  the  property  is  actually  occupied,  the  occupant  thereof  must  be 
made  defendant  in  the  action.  If  it  is  not  so  occupied,  the  action  must  be 
brought  against  some  person  exercising  acts  of  ownership  thereupon,  or  claim- 
ing title  thereto,  or  an  interest  therein,  at  the  time  of  the  commencement  of  the 
action. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         2/ 
Art.  6.     Who  May  be  Defendants  and  Who  Must  be  Joined  as  Such. 


§  1503.   Who  may  be  joined  as  defendants. 

In  either  of  the  cases  specified  in  the  last  section,  any  other  person  claiming 
title  to,  or  the  right  to  the  possession  of,  the  real  property  sought  to  be  recov- 
ered, as  landlord,  remainderman,  reversioner,  or  otherwise  adversely  to  the 
plaintiff,  may  be  joined  as  defendant  in  an  action  therefor. 

If  the  premises  are  actually  occupied,  the  occupant  must  be 
made  defendant.  People  v.  Auibreckt,  ii  Abb.  97;  Taylor  v. 
Crane,  15  How.  358;  Lucas  v.  JoJinson,  8  Barb.  244;  Pidenv. 
Reynolds,  32  How.  353  ;  Banyer  v.  Empie,  5  Hill,  48  ;  Schuyler 
V.  Marsh,  37  Barb.  350.  It  must  be  an  occupation  against  the 
plaintiff.     Strong  n.  City  of  Brooklyn,  68  N.  Y.  i. 

The  words  of  section  1502  ''  the  occupant  thereof"  may  be 
read  as  meaning  an  occupant  and  not  all  the  occupants,  and 
although  plaintiff  in  ejectment  may  make  every  occupant  a  de- 
fendant, he  is  not  required  to  do  so  and  the  defendant  cannot 
object  to  the  non-joinder  of  any  person  alleged  to  be  in  occupancy 
of  a  part  of  the  premises  when  such  joinder  would  not  in  any  wise 
benefit  the  party  sued  or  be  necessary  for  the  determination  of  his 
rights.  Hennesey  v.  Paulsen,  147  N.  Y.  255,  69  St.  Rep.  539; 
affirming  12  Misc.  384,  Cyj  St.  Rep.  343,  33  Supp.  638. 

If  the  plaintiff  in  the  action  of  ejectment  fails  to  make  a  tenant 
in  occupation  of  the  premises  a  party,  bringing  the  action  against 
the  landlord  only,  and  the  latter  joins  issue  without  pleading  the 
non-joinder  of  the  tenant,  by  his  omission  to  so  plead  he  waives 
the  defect  of  the  non-joinder  and  as  he  is  a  proper  party,  the 
action  must  be  tried  upon  the  question  of  plaintiff's  title  and  right 
to  possession  although  the  recovery  of  the  land  cannot  be  enforced 
as  against  the  tenant's  occupancy.  Clason  v.  Baldwin,  129  N.  Y. 
183,  37  St.  Rep.  213. 

In  an  action  for  the  possession  of  real  property,  parties  should 
not  be  brought  in  on  a  mere  allegation  by  plaintiff  that  they  have 
or  claim  some  interest  in  the  property  accrued  since  suit  brought, 
if  they  resist  the  application  and  deny  the  claim.  Cagger  v. 
Sholtes,  82  Hun,  378,  6^  St.  Rep.  557,  31  Supp.  250. 

If  the  premises  are  not  occupied,  the  action  may  be  brought 
against  one  claiming  adversely  to  plaintiff.  Abeel  \.  ]'an  Gelder, 
36  N.  Y.  5  13  ;  Carter  v.  Hunt,  40  Barb.  89.  The  occupation  must 
be  actual.  Allen  v.  Dunlap^  42  Barb.  585.  A  church  edifice  used 
and  occupied  by  a  religious  society  is  deemed  to  be  occupied 
by   the   corporation   and  not    by   the    trustees.     Lucas  v.    John- 


28    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  6.     Who  May  be  Defendants  and  Who  Must  be  Joined  as  Such. 


son,  8  Barb.  244,  supra.     It  is  said  in  People  v.  Mayor  of  Nezv  York, 
28  Barb.  240,  that  if  the  premises  are  actually  occupied  by  a  tenant, 
the  action  must  be  against  the  tenant  and  not  against   the  corpo- 
ration.    A  soldier  of  the  United  States  in  charge   under  his  supe- 
rior ofificers,  is  not  an  actual  occupant.     People  v.  Ambreeht,    11 
Abb.  97  ;  affirmed  24  How.  610,  n.      If  land   is  occupied,  eject- 
ment must  be  against  the  person  actually  possessing  it,  though  as 
a  mere  servant.     But  if  no  one  lives  on  the  land,  and  the  servant 
tills  it  for  his  employer,  the  latter  must  be  sued.     Shaver  v.  Mc- 
Graiv,   12   Wend.   558.     Ejectment   for  entering  and   unlawfully 
holding  land  will  not  lie  against  a  person  who  is  not  in  possession 
himself,  or  by  his  servant  though  he  has  given  a  lease  of  it  and  it 
is  occupied  by  the  lessee.     CJiamplain,  etc.  R.  R.  Co.  v.  Valentine, 
19  Barb.  484.     A  person  not   in   possession  of  property,  though 
claiming  an  interest  therein,  is  not  a  necessary  party.      Van  Bnreji 
V.  Cockburn,  14  Barb.  118. 

Where  the  landlord  stated,  when  the  summons  and  complaint 
Avere  served  upon  him,  that  he  lived  in  and  was  in  possession  of 
the  house,  and,  upon  the  faith  of  this,  service  was  made  on  him, 
he  is  estopped  from  denying  his  actual  possession.  Finnegan  v. 
Carraher,  47  N.  Y.  493,  affirming  61  Barb.  252.  It  was  said  that 
a  railroad  company  which  has  its  track  on  a  street  but  w^hich  does 
not  occupy  the  whole  of  it  is  not  an  actual  occupant.  Redficld  v. 
Utica,  etc.  R.  R.  Co.  25  Barb.  54.  But  it  is  also  held  that  eject- 
ment lies  against  a  railroad  company  for  laying  its  rails  over  land 
dedicated  by  plaintiff  to  public  use  as  a  street  and  running 
its  cars  thereon.  Carpenter  v.  O.  &  IV.  R.  R.  Co.  24  N.  Y.  655. 
The  same  rule  is  also  held  in  Adams  v.  S.  &  C  R.  R.  Co.  10  N. 
Y.  328,  reversing  11  Barb.  414;  Williams  v.  TV.  Y.  C.  R.  R.  Co. 
16  N.  Y.  97  ;    IVager  v.  T.  &  U.  R.  R.  Co.  25  N.  Y.  526. 

A  railroad  company  that  has  laid  a  track  over  which  trains  pass, 
has  such  occupancy  or  possession  as  to  authorize  ejectment  against 
it.  It  is  substantially  in  the  exclusive  possession  of  the  company. 
Gas  Light  Co.  v.  Rome,  etc.  R.  R.  Co.  1 1  Civ.  Pro.  R.  239. 

When  brought  against  a  person  claiming  title  it  must  be  upon 
something  more  than  an  idle  declaration  that  he  owns  the  land. 
Fosgaie  v.  Herkimer  Mfg.  Co.  12  N.  Y.  580  ;  Banyer  v.  Empie,  5 
Hill,  48  ;  Abeel  v.  Van  Gelder,  36  N.  Y.  513  ;  Lucas  v.  JoJinson,  8 
Barb.  244.  It  is  sufficient  that  a  party  claims  and  defends  the 
title  of  the  tenant  in  possession.     Abeel  v.  Van  Gelder,  ^fi  N.  Y. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).  29 

Art.  6.     Who  May  be  Defendants  and  Who  Must  be  Joined  as  Such. 

513  ;  Fimtegan  v.  Carraher,  47  N.  Y.  493.  Ejectment  lies  against 
one  who  enters  into  possession  with  the  assent  of  another  under 
a  contract  to  purchase,  after  default  in  payment  of  purchase 
money.  Pierce  v.  Tuttle,  53  Barb.  155;  Poivers  v.  Ingrahani,  3  Barb. 
576.  Where  the  defendant  claims  title  under  and  by  virtue  of  a 
deed  executed  to  him  as  receiver  by  a  corporation,  by  order  of  the 
court,  the  deed  suf^ces  to  show  title  in  defendant  sufficient  to 
maintain  ejectment  against  him.  The  rule  is  reiterated  that  no 
person  should  be  made  defendant  except  the  party  in  actual  and 
exclusive  possession.  Schuyler  v.  Marsh,  receiver,  etc.  37  Barb. 
350  ;  citing  Ensign  v.  Sherman,  14  How.  439  ;  Waller  v.  Lockwood, 
23  Barb.  328  ;  Sanders  v.  Leary,  16  How.  308.  It  lies  again.st  a 
tenant  for  life  holding  over  without  notice  to  quit.  Livingston  v. 
Tanner,  14  N.  Y.  64.  It  does  not  lie  against  a  mortgagor  in  pos- 
session after  default,  nor  against  his  assignee.  Randall  \.  Raub,  2 
Abb.  307  ;  Bolto)i  v.  Breivster,  32  Barb.  389  ;  St.  John  v.  Bump- 
stead,  17  Barb.  100.  It  will  lie  in  favor  of  the  reversioner  or  per- 
son purchasing  his  interest  on  execution  against  the  heirs  of  the  life 
tenant  holding  over  after  his  death.  Nivis  v.  Sabine,  44  How.  252. 
It  will  not  lie  against  one  who  has  made  improvements,  relying  on  a 
parol  agreement  as  to  boundary  line.  Corkhill  v.  Landers,  44 
Barb.  218.  The  action  will  lie  against  a  corporation.  Daterv. 
Troy,  etc.  Turnpike  Co.  2  Hill,  629.  An  infant  may  be  sued  in 
ejectment.  McCoon  v.  Smith,  3  Hill,  147.  In  Stewart  v.  Patrick, 
68  N.  Y.  450,  it  was  held  that  where  a  husband  went  into  possession, 
under  claim  of  title  in  himself  and  wife  as  joint  tenants,  both  were 
proper  parties.  She  did  not  disclaim  title  when  possession  was 
demanded  but  refused  to  deliver  possession.  It  was  said  by  the 
court  that  she  was  properly  joined  as  one  claiming  title  and  pos- 
session, and  the  action  would  have  been  defective  had  she  been 
omitted  as  a  party.  But  generally  a  married  woman  ought  not 
to  be  joined  with  her  husband  when  he  is  in  possession.  Rose  x. 
Bell,  38  Barb.  25. 

When  a  party  claims  to  own  unoccupied  premises  and  has  con- 
tracted to  sell  them  to  others  who  are  exercising  acts  of  ownership 
over  them,  the  plaintiff  may  elect  to  make  such  purchasers  de- 
fendants. Edzvardsv.  Tanner  Fire  Lns.  Co.  2\  We.wd,^6y.  When 
in  an  action  against  several  defendants  it  appears  they  occupy,  in 
severalty,  distinct  portions  of  the  premises,  he  may  elect  against 
which  he  will  proceed.     Dillayev.  Wilson,  43  Barb.  261  ;  Fosgatc  v. 


30    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  6.     Who  May  be  Defendants  and  Who  Must  be  Joined  as  Such. 

Herkimer,  etc.  Manuf.  Co.  9  Barb.  287.  Several  occupants  of  a 
building,  although  occupying  different  portions,  may  be  joined 
in  an  action  of  ejectment.  Pcarce  v.  Ferris,  10  N.  Y.  280.  As 
to  whether  the  action  survives,  see  Mosely  v.  Mosely,  1 1  Abb. 
105.  As  to  the  effect  of  change  of  occupancy  pending  suit,  it 
appears  that  the  cause  of  action  cannot  be  transferred  to  the  new 
occupant,  and  he  cannot  be  substituted  as  a  party.  Mosely  v. 
Albany  &  N.  R.  R.  Co.  14  How.  71.  When  suit  is  brought 
against  a  tenant  the  landlord  may  be  let  in  to  defend.  Shaver  v. 
iJ/f(7r«w,  12  Wend.  558.  See  Stiles  v.  Jackson,  \  Wend.  T)16.  To 
entitle  a  person  to  be  admitted  to  defend,  he  must  ordinarily  show 
that  a  privity  of  interest  existed  between  him  and  the  defendant 
when  the  action  commenced,  and  that  the  possession  was  then 
consistent  with  and  connected  with  the  possession  of  the  latter, 
and  liable  to  be  divested  or  disturbed  by  a  claim  adverse  to  that 
possession.  Jackson  v.  McEvoy,  i  Caines,  151.  Tenants  in  com- 
mon of  the  defendant  will  not  be  admitted  to  defend  unless  they 
show  that  they  are  interested  in  the  result  of  the  suit.  Jackson  v. 
White,  2  Cow.  585.  One  who  claims  in  opposition  to  the  title  of 
the  defendant  cannot  be  admitted  as  a  co-defendant.  Jackson  v, 
Flint,  2  Cow.  594. 

Where  infant  remaindermen  neither  claim  title  to  or  the  rig-ht 
to  the  possession  of  the  land  in  controversy,  nor  do  any  act  in 
hostility  to  plaintiff's  title,  they  are  not  proper  parties  to  an 
action  of  ejectment.  Sisson  v.  Cunnnings,  8  St.  Rep.  573  ;  S.  c. 
106  N.  Y.  56. 

In  ejectment,  persons  who  have  claims  against  the  property, 
nominal  or  real,  analogous  "to  a  lease  by  virtue  of  a  tax  title,  are 
not  proper  parties.  Pixley  v.  Rockwell,  i  Sheldon,  267.  Mort- 
gagees being  also  purchasers  under  a  subsequent  foreclosure  of 
their  mortgage,  may  be  joined  with  the  tenant  in  possession  under 
them,  as  defendants  in  ejectment,  brought  by  one  claiming  under 
the  mortgage,  on  the  ground  that  the  mortgage  was  void  for 
usury.     More  v.  Deyoe,  22  Hun,  208. 

A  defendant,  in  an  action  of  ejectment,  is  not  entitled  to  have 
additional  parties  brought  into  the  action  by  setting  up  an  equit- 
able defence.      Webster  v.  Bond,  9  Hun,  437. 

A  person  is  properly  made  a  party  who  is  alleged  to  be  in  pos- 
session of  part  of  the  property  under  the  other  defendants.  Bank 
v.  Levinus,  5  Civ.  Proc.  368. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT),         3 1 
Art.  7.      Production  of  Authority  by  Attorney. 

In  an  action  of  ejectment,  a  mortgagee  applied  to  be  made  de- 
fendant on  the  ground  of  collusion  between  plaintiff  and  defend- 
ant to  allow  plaintiff  to  take  judgment.  Held,  that  the  mort- 
gagee had  no  interest  in  the  controversy  and  that  the  application 
was  properly  denied.     Roberts  v.  Innuay,  51  Super.  Ct.  531. 

Where  husband  and  wife  lived  together,  the  premises  conveyed 
to  and  which  were  paid  for  by  the  \\'ife,  she  is  the  occupant  and 
the  proper  party  to  the  action  of  ejectment,  and  such  action  can- 
not be  maintained  against  the  husband.  When  premises  are  actu- 
ally occupied,  ejectment  must  be  brought  against  the  occupant,  but 
such  action  cannot  be  maintained  against  a  person  wdio  is  not  in 
occupation  of  premises  in  dispute  and  does  not  claim  to  be  either 
the  owner  or  entitled  to  possession  thereof.  Danihee  v.  Hyatt,  8 1 
Hun,  238,  62  St.  Rep.  663,  30  Supp.  707. 

In  an  action  of  ejectment,  the  answer  alleged  a  defect  of  parties 
defendant  in  that  one  M.  "  was  and  now  is  an  occupant  of  a  part 
of  the  premises  "  as  a  tenant  of  one  D.  "  who  was  and  still  is  the 
legal  owner  and  in  possession  of  the  whole  of  said  premises  and 
neither  of  said  persons  has  been  made  party  defendant  herein  ;  " 
it  was  held  that  a  demurrer  to  this  defence  should  have  been  sus- 
tained.    Henncssy  v.  Paulson,  147  N.  Y.   257,  affirming   12   Misc. 

384- 

It  seems  that  where  land  is  occupied,  no  recovery  can  be  had 

in  ejectment  for  non-payment  of  rent  unless  brought  against  one 

who  was  the  actual  occupant  when  the  action  was  begun.     Bradt 

v.  ChiircJi,  1 10  N.  Y.  537,  affirming  39  Hun,  262. 

ARTICLE  VII. 

Production  of  Authority  by  Attorney,  §§  15 12, 15 13,  15 14. 

§  1512.  Motion  for  plaintiffs  attorney  to  produce  his  authority. 

A  defendant,  in  an  action  to  recover  real  property  or  the  possession  thereof, 
may,  at  any  time  before  answering,  upon  an  affidavit  that  evidence  of  the 
authority  of  the  plaintiff's  attorney  to  commence  the  action  has  not  been  served 
upon  him,  apply,  upon  notice,  to  the  court  or  judge  thereof,  for  an  order  direct- 
ing the  attorney  to  produce  such  evidence. 

§  1513.  Order  thereupon. 

Upon  such  an  application,  the  court  or  judge  must,  in  a  proper  case,  make  an 
order,  requiring  the  plaintiff's  attorney  to  produce,  as  directed  therein,  evidence 
of  his  authority  to  commence  the  action,  and  staying  all  proceedings  therein,  on 
the  part  of  the  plaintiff,  until  the  evidence  is  produced. 


32    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT), 


Art.  7.     Production  of  Authority  by  Attorney. 


§  1514.  Evidence  of  authority. 

Any  written  request  of  the  plaintiff  or  his  agent,  to  the  plaintiff's  attorney,  to 
commence  the  action,  or  any  written  recognition  of  his  authority  so  to  do,  veri- 
fied by  the  affidavit  of  the  attorney,  or  any  other  competent  witness,  is  sufficient 
presumptive  evidence  of  such  authority. 

On  a  motion  to  compel  the  attorney  for  plaintiff  in  ejectment  to 
produce  evidence  of  his  authority  to  commence  the  action,  a  veri- 
fication of  the  complaint  is  in  legal  effect  a  written  request  and 
recogition  of  the  authority  of  the  attorney  to  commence  the 
action.  Graham  v.  A)idrc%vs,  11  Misc.  649,  66  St.  Rep.  177,  32 
Supp.  799,  24  Civ.  Pro.  263. 

The  court  has  a  discretion  in  regard  to  requiring  the  authority 
of  an  attorney  to  be  disclosed,  and  written  authority  may  be  re- 
quired. Steivart  v,  Stewart,  56  How.  256.  The  general  rule  is 
that  a  retainer  will  be  presumed,  and  an  appearance  by  attorney 
will  be  recognized  as  regular.  Hamilton  v.  Wright,  37  N.  Y.  502. 
In  case  an  application  is  made  for  an  order  for  an  attorney  to  pro- 
duce his  authority  the  court  has  no  discretion,  but  is  bound  to 
grant  the  order  and  stay  proceedings  meanwhile,  and  the  order 
must  state  where  the  authority  is  to  be  produced.  Harris  v. 
Mason,  10  Wend.  568  ;  Turner  v.  Davis,  2  Den.  187  ;  McDermott 
V.  Daiison,  i  How.  194;  Hozvard  \r .  Hoivard,  11  How.  80. 

On  the  return  of  an  order  to  show  cause  why  the  attorneys 
should  not  be  compelled  to  produce  their  authority  to  bring  the 
action,  plaintiff  swore  that  he  had  instructed  it  to  be  brought,  and 
an  order  was  made  reciting  the  production  of  the  authority.  On 
a  motion  to  dismiss  on  the  ground  that  the  authority  required  by 
statute  was  not  shown,  Jield,  that  the  former  order  was  conclusive 
unless  reversed  on  appeal.  Carpenter  v.  Allen,  ^'^  Super.  Ct.  322. 
Before  the  Code  of  Civil  Procedure,  it  was  held  that  a  general 
agent  of  plaintiff  could  not  give  authority.  Howard  v.  Howard, 
II  How.  80.  But  see  the  language  of  §  15 14.  An  instrument 
executed  by  one  of  two  joint  owners,  in  the  names  of  himself  and 
his  co-tenant,  recognizing  an  action  in  their  names,  is  sufficient. 
Howard  v.  Howard,  1 1  How,  80,  supra. 

As  to  the  attorney's  authority  where  action  is  brought  in  name 
of  grantor,  for  benefit  of  grantee,  see  Hamilton  v.  Wright,  37 
N.  Y.  502. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    33 


Art.  8.     The  Complaint. 


ARTICLE  VIII. 
The  Complaint,    §  15 ii. 

§  1511.  Property  claimed  in  action;  how  described  in  complaint. 

The  complaint  must  describe  the  property  claimed  with  common  certainty,  by 
setting  forth  the  name  of  the  township  or  tract,  and  the  number  of  the  lot,  if 
there  is  any,  or  in  some  other  appropriate  manner;  so  that,  from  the  description, 
possession  of  the  property  claimed  may  be  delivered,  where  the  plaintiff  is  en- 
titled thereto. 

Under  §  1496  the  plaintiff  in  ejectment  must  demand  in  the 
complaint  damages  for  withholding  the  property.  That  section  is 
so  closely  associated  with  §  1497,  treating  of  damages,  and  §  1531, 
that  it  is  printed  in  that  connection  as  it  is  a  question  of  recovery 
rather  than  of  pleading. 

The  provisions  of  the  Revised  Statutes  —  2  Edm.  313,  §§  8 
and  9  —  required  a  fuller  description,  and  also  that  where  an  undi- 
vided interest  was  claimed,  that  it  should  be  so  stated.  The  general 
rule  is,  that  the  State  and  county  in  which  the  lands  are  situated 
should  be  set  forth,  as  well  as  the  town  or  city.  Sedgwick  & 
Wait,  §  457. 

In  Buddy.  Bingham,  18  Barb.  494,  under  the  Revised  Statutes, 
a  description  was  held  so  imperfect  as  to  be  incapable  of  amend- 
ment, while  in  Olendorfv.  Cook,  i  Lans.  37,  after  a  description  of 
the  premises  had  been  given  on  the  trial,  an  amendment  was 
allowed. 

The  tendency  of  modern  decision  has  been  to  reduce  the  cer- 
tainty required  in  pleading  within  convenient  limits.  Seward  v. 
Jackson,  8  Cow.  427.  The  practice  of  making  fictitious  persons 
parties  as  lessors  has  been  abolished,  and  the  real  parties  in  inter- 
est are  named  as  parties  to  the  action.  Hubbcll  v.  Lerch,  62  Barb- 
296,  affirmed,  58  N.  Y.  237.  An  averment  in  pleading  will  be 
construed  most  strongly  against  the  pleader.  Slocum  v.  Clark,  2 
Hill,  475.  As  to  what  is  a  sufficient  description,  see  Hansee  v. 
Mead,  2  Civ.  Pro.  R.  175. 

The  complaint  must  allege  that  plaintiff  is  seized  of  an  estate 
in  the  premises  claimed,  and  that  he  is  entitled  to  the  immediate 
possession  of  them,  and  that  the  defendant  unlawfully  withholds 
the  possession  from  him.  Alvordv.  Hetzel,  2  How.  N.  S.  88,  and 
cases  cited  ;  Walter  v.  Lockwood,  23  Barb.  228  ;  People  v.  Mayor 
of  Nczv  York,  28  Barb.  240.  It  must  show  plaintiff  out  of  posses- 
[Special  Actions  —  3.] 


34    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  8.     The  Complaint. 

sion — Taylor  v.  Crane,  15  How.  358  —  and  the  defendant  in 
possession.  Banyer  v.  Empie,  5  Hill,  48  ;  Redfield  v.  Utica,  etc. 
R.  R.  Co.  25  Barb.  54;  Child  v.  Chappell,  9  N.  Y.  246.  If  the 
complaint  fails  to  state  the  nature  of  the  estate  claimed  by  plain- 
tiff, the  defect  should  be  taken  advantage  of  by  demurrer.  Clark 
V.  Crego,  47  Barb.  599.  As  to  the  effect  of  stating  plaintiff's  inter- 
est as  a  different  one  from  that  sought  to  be  proven,  see,  under 
Revised  Statutes,  Harrison  v.  Stevens,  12  Wend.  170;  Holmes  v. 
Seely,  17  Wend.  75. 

While  a  complaint  which  alleges  that  plaintiff  owns  title  to  the 
lands  described  therein  and  demands  judgment  for  the  surrender 
of  possession,  cannot  be  upheld  as  a  complaint  in  ejectment,  in 
the  absence  of  an  averment  that  the  defendant  is  in  actual  posses- 
sion or  that  the  property  is  vacant  and  the  defendant  claims  title 
thereto,  it  may  be  upheld  as  an  action  to  remove  a  cloud  on  title 
where  it  avers  facts  showing  that  the  defendant's  title  is  apparently 
good  but  is  in  fact  totally  bad.  Sanders  v.  Parshall,  6"/  Hun,  105, 
affirmed,  142  N.  Y.  679,  51  St.  Rep.  551. 

It  is  not  sufficient  that  a  complaint  in  ejectment  alleges  that 
plaintiff's  husband  executed  a  deed  of  the  property  to  defendant, 
without  averring  that  defendant  is  occupant  or  exercises  acts  of 
ownership  or  claims  title  or  interest  in  the  property.  Connolly  v. 
Newton,  85  Hun,  552,  66  St.  Rep.  704,  33  Supp,  102. 

If  an  equitable  title  is  relied  on,  it  should  be  so  stated.  Peck 
V.  Newton,  46  Barb.  173.  But  it  was  held  in  Chapman  m.D.L  & 
W.  R.  R.  Co.  3  Lans.  261,  that  a  plaintiff  who  had  alleged  the 
ownership  of  lands  in  fee  simple,  might  prove  title  as  mortgagee 
in  possession.  On  a  claim  for  the  whole  property,  judgment  can- 
not be  had  for  an  undivided  part,  at  least  without  amendment. 
Cook  V.  Wardens,  etc.  St.  Paul's  Church,  5  Hun,  293  ;  Holmes  v. 
Seeley,  17  Wend.  75  ;  Cole  v.  Irvine,  6  Hill,  634;  Gillett  v.  Stan- 
ley, I  Hill,  121  ;  Smith  v.  Long,  12  Abb.  N.  C.  133,  Court  of  Appeals, 
reversing  9  Daly,  429.  As  to  amendment,  see  Kellogg  v.  Kellogg, 
6  Barb.  116;  St.  John  v.  Northrup,  23  Barb.  25.  The  nature  of  the 
plaintiff's  claim  need  not  be  stated  in  detail,  but  the  general  form 
or  character  of  the  interest  must  be  averred.  Walter  v.  I.ockzvood, 
2  Barb.  228  ;  Austin  v.  Schuyler,  7  Hun,  275  ;  Rogers  v.  Sins- 
heimer,  50  N.  Y.  646;  Clark  v.  Crego,  47  Barb.  599,  affirmed,  51 
N.  Y.  646. 

The  general  rule,  of  course,  applies  that  it  is  not  proper  to  plead 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    35 


Art.  8.     The  Complaint. 


evidence.  Delavan  v.  Niles,  9  Abb.  N.  C.  48.  It  is  sufficient  to 
allege  that  plaintiff  has  the  lawful  title  as  the  owner  in  fee.  San- 
ders V.  Lcavy,  16  How.  308.  A  complaint  which  states  that  on 
some  day  certain  after  his  title  accrued,  plaintiff  was  possessed  of 
the  premises,  with  a  description  of  the  premises  with  reasonable 
certainty,  so  that,  from  such  description,  possession  of  the  premi- 
ses claimed  may  be  determined,  that  being  so  possessed,  the  de- 
fendant, at  a  time  specified,  entered  upon  said  premises,  and 
unlawfully  withholds  possession  from  plaintiff,  and  claiming  dam- 
ages, has  been  held  sufficient.  Warner  v.  Nelligar,  12  How.  402  ; 
Ensign  v.  Sherman,  14  How.  439.  But  proof  that  the  property  was 
conveyed  to  plaintiff  by  a  person  not  shown  to  have  been  in  pos- 
session, or  to  have  title,  is  not  sufficient  to  show  title.  Gardner 
v.  Heart,  i  N.  Y.  528.  Complaint  in  ejectment  cannot  on  trial  be 
amended  to  one  for  encroachment  of  cornice.  Vrooman  v.  Jack- 
son, 6  Hun,  326. 

An  allegation  that  plaintiff  is  entitled  to  the  possession  of  land, 
and  to  its  rents  and  profits,  is  a  mere  allegation  of  a  conclusion  of 
law,  and  is  not  sufficient  to  show  a  cause  of  action  ;  the  facts  on 
which  the  conclusion  is  based  should  be  stated.     Sheridan  v.  Jack- 
son, 72  N.Y.  170,  affirming  10  Hun,  89.     A  complaint  for  the  re- 
covery of  the  rents  and  profits  of  real  estate  held  adversely  to 
plaintiff's  intestate  must  show  that  the  plaintiff's  intestate  obtained 
possession.   Grout  v.  Cooper,  ^\inxi,\2^.  For  insufficient  complaint 
in  a  peculiar  case,  see  Bradley  v.  Dwight,  62  How.  300.     Where 
a  complaint  in  an  action  of  ejectment  does  not  set  forth  that  de- 
fendant unlawfully  withholds,   or  that    he    entered  without  the 
consent  of  the  plaintiff,  or  in  any  wise  unlawfully,  or  that  plain- 
tiff is  entitled  to  the  immediate  possession  of  the  premises,  or 
equivalent  allegations,  it  will  be  held  bad  on  demurrer.     Moore  v. 
Lehman,  52  Super.  Ct.  283.     Contra,  Halscy  v.  Gerdes,   17  Abb. 
N.  C.  395,  holding  that  a  complaint  alleging  that  plaintiff  is  seized 
in  fee,  and  that  defendants  are  in  possession  and  withhold  the 
same,  is  sufficient  on    demurrer.      Citing  Jenkins  v.  Fahey,   73 
N.  Y.  355,  and  disapproving  case  last  cited. 

Where  a  complaint  states  all  the  elements  of  an  action  in  eject- 
ment, its  statements  of  additional  facts  as  to  damages,  and  upon 
which  an  application  for  a  receiver  might  be  based,  do  not  change 
the  cause  of  action  to  one  in  equity.  Biicher  v.  Carroll,  19  Hun, 
618. 


36    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  8.     The  Complaint. 


Where  plaintiff,  claiming  possession  and  rents,  sets  out  that 
defendants  in  an  action  between  them  had  a  receiver  appointed, 
who  had  received  the  rents  sought  to  be  reached,  a  cause  of  action 
is  not  stated,  unless  it  is  alleged  that  the  parties  in  the  previous 
action  acted  in  hostility  to  plaintiff,  or  that  plaintiff  has  been  in- 
jured by  their  action.  Sheridan  v.  Jackson,  72  N.  Y.  170.  In 
City  of  New  York  v.  Smith,  64  How.  89,  it  was  held  that,  in  an 
action  of  ejectment  to  enforce  a  forfeiture  for  breach  of  covenant, 
the  facts  constituting  the  breach  must  be  pleaded.  Plaintiff  can- 
not, in  one  action,  claim  the  recovery  of  the  premises,  confirma- 
tion of  his  title,  and  a  decree  for  the  conveyance  of  an  outstand- 
ing title.  Lattin  v.  McCarthy,  8  Abb.  225.  Trespass  quare 
clausiuii  /regit  and  ejectment  cannot  be  joined.  Smith  v.  Hal- 
lock,  8  How.  73  ;  Budd  v.  Bingham,  18  Barb.  494.  Where  parties 
occupied  separately  different  stories  of  the  building,  they  were 
properly  joined  as  defendants.  Pearce  v.  Ferris,  10  N.  Y.  280; 
Pearce  v.  Colden,  8  Barb.  522. 

In  ejectment  between  co-tenants  actual  ouster  should  be  averred, 
or  some  act  which  amounts  to  a  total  denial  of  plaintiff's  rights. 
Edwards  v.  Bishop,  4  N.  Y.  61.  As  to  the  right  to  allege  dam- 
ages for  withholding  possession,  see  Article  X,  §§  1496  and  1531, 
and  Vandervoort  v.  Gould,  36  N.  Y.  639. 

Where  there  is  no  allegation  in  the  complaint  of  the  value  of 
the  use  and  occupation,  and  the  only  mention  of  damages  is  in 
the  prayer  for  judgment,  an  objection  to  the  admissibility  of  evi- 
dence as  to  the  value  of  use  and  occupation  is  good.  Lamed  v. 
Hudson,  57  N.  Y.  151.  But  in  Cagger  v.  Lansing,  64  N.  Y.  417, 
where  the  complaint  contained  in  substance  an  allegation  demand- 
ing mesne  profits,  and  no  objection  was  made  to  the  admission  of 
the  evidence,  the  judgment  was  sustained. 

In  Seaton  v.  Davis,  i  T.  &  C.  91,  it  is  held  that  to  recover 
mesne  profits  there  must  be  a  separate  count  in  the  complaint. 
But  the  objection  must  be  taken  on  the  trial,  otherwise  it  will  be 
deemed  to  be  waived.  These  decisions  were  under  the  Code  of 
Procedure.  See  as  to  change  from  rule  as  laid  down  in  57  N.  Y. 
151,  supra,  Delisle  v.  Hunt,  36  Hun,  620. 

An  allegation  in  a  complaint  in  ejectment  that  the  plaintiffs 
are  and  for  six  years  have  been  the  owners  of  all  the  right,  title 
and  interest  of  the  lessor  in  the  demised  premises  and  entitled  to 
the  rents  reserved  in  the  lease  is  sufficient ;  it  is  not  necessary  to 


I 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    37 


Art.  8.     The  Complaint. 


allege  how  they  acquired  title.  A  complaint  in  ejectment  for 
non-payment  of  the  rent  reserved  in  three  separate  leases  of 
different  premises  contains  three  causes  of  action,  which  should 
be  separately  stated  and  numbered.  Ovcrbagh  v.  Oathout,  90 
Hun,   506,  35   N.  Y.  Supp.  962,  70  St.  Rep.  642. 

A  complaint  in  ejectment,  after  the  usual  statements,  described 
the  buildings  upon  the  several  parcels  and  the  business  carried  on 
in  each  and  demanded  judgment  for  possession  and  damages  for 
withholding,  including  rents  and  profits.  Held,  that  it  was  not 
demurrable  as  improperly  uniting  several  causes  of  action.  Fra- 
zier  V.  Dewey,  i  App.  Div.  138,  37  N.  Y.  Supp.  973. 

A  complaint  that  does  not  allege  that  defendant  unlawfully 
withholds  or  entered  without  plaintiff's  consent,  or  in  any  wise 
wrongfully,  or  that  plaintiff  is  entitled  to  immediate  possession, 
is  demurrable.     Moore  v.  Lehman,  52  N.  Y.  Supr.  283. 

In  Roivland  v.  Miller,  44  St.  Rep.  826,  it  was  held  that  an 
alleged  description  in  a  complaint  described  only  a  straight  line 
and  nothing  else  and  that  the  complaint  was  demurrable. 

Where  the  deeds  put  in  evidence  by  plaintiff  do  not  locate  the 
property  with  sufficient  accuracy  to  enable  the  court  or  jury  to 
determine  whether  it  is  described  by  the  words  of  the  complaint 
there  can  be  no  recovery.  Jarvis  v.  Lynch,  36  St.  Rep.  711,  13 
Supp.  703. 

Where  a  complaint  described  twenty-five  acres  in  a  single  parcel 
and  the  court  allowed  without  amendment  of  the  complaint  a 
recovery  for  eleven  acres  thereof,  it  was  held  proper,  and  that  the 
requirements  of  this  section  of  the  Code,  that  the  complaint  must 
describe  the  property  claimed,  with  common  certainty,  did  not 
conflict.  Barley  v.  Roosa,  35  St.  Rep.  898.  See  Art.  XIV,  en- 
titled "Verdict." 

Where  plaintiff  claims  an  estate,  not  in  fee  simple,  the  rule 
requiring  the  complaint,  where  it  alleges  that  plaintiff  is  an  heir 
of  the  ancestor,  to  show  how  he  is  an  heir,  does  not  apply.  Mas- 
terson  v.   Townshend,  23  St.  Rep.  626. 

A  complaint  cannot  be  amended  on  the  trial,  so  as  to  change 
the  cause  of  action,  into  one  to  compel  defendant  to  purchase 
land,  at  a  price  to  be  fixed  by  the  court  or  remove  its  road 
from  the  land.  Gas  Light  Co.  v.  Rome,  etc.  R.  R.  Co.  24  St. 
Rep.  154. 


38    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  S.     The  Complaint. 


In  order  to  justify  a  judgment  for  plaintiff  in  an  action  of  eject- 
ment upon  demurrer  to  the  complaint,  the  complaint  must  dis- 
close on  its  face  such  a  state  of  facts  as  that  their  admission  by 
the  demurrer  leaves  but  the  legal  conclusion  to  be  drawn  in  the 
plaintiff's  favor.     Masterson  v.  Townshend,  123  N.  Y.  458. 

Where  the  complaint  does  not  disclose  how  the  plaintiff  became 
the  owner,  and  the  defendant  is  unable  to  ascertain  the  theory 
upon  which  the  plaintiff  claims  the  land,  an  order  for  the  exami- 
nation of  the  plaintiff  as  to  the  source  and  character  of  the  title,  is 
proper.      Thebaud  v.  Hume,  39  St.  Rep.  446. 


Precedent  for  Complaint  —  Short  Form. 

SUPREME  COURT  — County  of  Monroe. 


EDWIN  A.  BARNES,  Plaintiff, 

agst. 

HARVEY  E.  LIGHT  and  MARY  H.  LIGHT, 
Deff,ndants. 


-116  N.  Y.  34. 


The  plaintiff  above  named,  by  way  of  complaint  against  the  defend- 
ants above  named,  alleges  upon  information  and  belief  as  follows: 

That  he  is  theowner  in  fee  and  entitled  to  the  immediate  posses- 
sion of  the  premises  described  as  follows; 

(Insert  description.) 

That  on  and  prior  to  the  first  day  of  October,  1882,  plaintiff  was 
possessed  of  said  premises,  and  being  so  possessed  thereof,  that  the 
defendants  afterwards  and  on  or  about  the  first  day  of  October, 
1882,  entered  into  the  said  premises  and  that  they  unlawfully  with- 
hold from  the  plaintiff  the  possession  thereof  to  his  damage  five  hun- 
dred dollars. 

Wherefore  plaintiff  demands  judgment: 

1.  That  he  is  the  owner  in  fee  of  said  premises. 

2.  That  he  is  entitled  to  the  immediate  possession  thereof. 

3.  For  five  hundred  dollars  damages  besides  costs. 

HENRY  W.  CONKLIN, 

Plaintiff's  Attorney, 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         39 
Art.  8.     The  Complaint. 

Precedent  for  Complaint  —  Short  Form. 

SUPREME  COURT. 


JOHN  H.  HOWE, 

agst.  \    143  N.  Y.  190. 

ALFRED  BELL 


Plaintiff  complains  of  the  defendant  and  for  a  cause  of  action  alleges; 

First.  That  said  plaintiff  is  the  owner  in  fee  and  entitled  to  the 
possession  of  all  that  tract  or  parcel  of  land  situate  in  the  City  of 
Rochester,  County  of  Monroe  and  State  of  New  York,  and  bounded 
and  described  as  follows: 

(Insert  description.) 

Second.  That  on  the  3d  day  of  September,  1889,  this  plaintiff  was 
in  possession  of  said  above  described  premises  claiming  title  thereto; 
that  subsequently  and  before  the  commencement  of  this  action  the 
defendant  unlawfully  entered  upon  said  premises  and  is  now  in  pos- 
session of  the  same,  claiming  title  thereto,  and  has  excluded  and 
continues  to  exclude  the  plaintiff  from  possession  thereof,  to  the 
damage  of  the  plaintiff  of  five  hundred  dollars  ($500.00). 

Wherefore  plaintiff  demands  judgment  against  the  defendant  for 
the  recovery  of  said  lands  and  premises  in  fee  and  the  possession 
thereof,  with  five  hundred  dollars  ($500.00)  damages  for  withholding 
the  same,  besides  the  costs  of  this  action. 

July  i6th,  1890.  NATHANIEL    FOOTE, 

Plaintiff's  Attorney. 

Precedent  for  Complaint  —  Setting  Out  Plaintiff's  Title. 

SUPREME  COURT  — County  of  Ulster. 


EDWIN   YOUNG,  as  Trustee  under  the 
Will  of  THOMAS  CORNELL,  Deceased, 

agst. 

SARAH  B.  OVERBAUGH. 


-   145  N.  Y.  158. 


Plaintiff  complains  of  defendant  and  alleges: 

First.  That  one  Thomas  Cornell,  late  of  Kingston,  New  York, 
deceased,  was,  at  and  before  his  death,  seized  in  fee  of  all  that  piece 
or  parcel  of  land  situate,  lying  and  being  in  the  City  of  Kingston, 
Ulster  County,  New  York,  bounded  and  described  as  follows: 

(Insert  description.) 
and  was,  at  and  before  his  death,  entitled  to  the  possession  of  said 
premises. 

Second.  That  being  so  seized  he  died  on  the  30th  day  of  March, 
1890,  leaving  a  will  by  which  this  plaintiff  and  Catharine  Ann  Cor- 


40    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  8.     The  Complaint. 


nell  were  constituted  and  appointed  trustees  thereunder  and  execu- 
tors thereof. 

Third.  That  on  the  3d  day  of  April,  1890,  said  will  was  duly 
proved  as  a  will  of  real  estate,  and  admitted  to  probate  in  the  ofiface 
of  the  Surrogate  of  the  County  of  Ulster,  and  the  said  Catharine 
Ann  Cornell  thereupon  and  on  the  same  day  voluntarily  renounced 
her  appointment  as  such  trustee  and  executrix,  by  an  instrument  in 
writing  signed  by  her  and  duly  filed  and  recorded  in  said  Surro- 
gate's office. 

Fourth.  That  afterwards  and  on  the  3d  day  of  April,  1890,  the 
plaintiff  was,  by  the  Surrogate's  Court  of  the  said  County  of  Ulster, 
duly  appointed  as  sole  executor  of  said  last  will  and  testament  of 
said  Thomas  Cornell,  by  letters  testamentary  duly  issued  to  said 
plaintiff,  and  that  said  plaintiff  has  duly  qualified  and  entered  upon 
the  discharge  of  his  duties  as  such  executor  and  trustee,  and  was  at 
the  time  of  the  commencement  of  this  action,  and  is  acting  in  the 
execution  of  a  trust  created  by  said  will. 

Fifth.  That  the  said  Thomas  Cornell,  in  and  by  the  terms  of  his 
last  will  and  testament,  gave,  devised  and  bequeathed  the  lands  and 
premises  above  described  to  his  executors  and  trustees  to  be  held 
by  them  and  their  successors  in  trust  for  the  uses  and  purposes  in 
said  will  set  forth. 

Sixth.  That  said  plaintiff  by  reason  of  the  facts  hereinbefore 
alleged  is  the  owner  of  said  lands  and  premises,  and  is  seized  of  the 
entire  estate  therein,  subject  only  to  the  execution  of  the  said  trust 
as  created  and  set  forth  by  said  will,  and  is  entitled  to  the  immediate 
possession  of  said  lands  and  premises. 

Seventh.  That  the  defendant  is  in  the  possession  of  said  premises 
and  claims  a  right  thereto,  and  refuses  to  give  up  the  possession 
thereof  to  the  plaintiff,  although  the  same  has  been  duly  demanded, 
and  wrongfully  withholds  the  same  from  the  plaintiff. 

Wherefore  the  plaintiff  demands  judgment: 

First.   For  the  possession  of  said  premises. 

Second.  For  one  thousand  dollars,  the  plaintiff's  damages  by  the 
withholding  of  the  same,  together  with  his  costs. 

H.  C.   SOOP, 
Attorney  for  Plaintiff. 

Precedent  for  Complaint  —  Title  to  Highway. 

SUPREME  COURT  — Erie  County. 


CHARLES  EELS 

agst. 

THE  AMERICAN  TELEPHONE  AND 
TELEGRAPH  COMPANY. 


'I43  N.  Y.  133. 


The  above  named  plaintiff  by  John  M.  Bull,  his  attorney,  for  his. 
cause  of  action  against  the  above  named  defendant  alleges: 

I.  That  he  is  the  owner  in  fee  simple  of  the  farm  of  land  known  as 
part  of  lot   No.  29,  section  i,  township  11  and  range  5  in  the  town 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    4I 

Art.  8.     The  Complaint. 

of  Alden,  C'ounty  of  Erie,  and  State  of   New  York,  bounded  as  fol- 
lows: 

(Insert  description.) 
subject  to  the  use  of  said  road  for  high-way  purposes  only. 

II.  That  ever  since  the  4th  day  of  August,  1856,  and  up  to  the 
first  day  of  September,  1888,  plaintiff  has  been  in  possession  of  said 
premises  and  is  now  entitled  to  the  immediate  possession  thereof  as 
such  owner. 

III.  That  as  plaintiff  is  informed  and  believes  the  defendant  is  a 
domestic  corporation  created  by  and  existing  under  the  laws  of  the 
State  of    New  York. 

IV.  That  the  plaintiff  being  in  possession  of  said  premises,  the  de- 
fendant by  its  agents  and  servants  did  on  or  about  the  ist  day  of 
September,  1888,  unlawfully  enter  upon  said  premises  lying  between 
the  center  line  of  said  Cayuga  Creek  Road  and  the  southerly  side 
thereof,  and  eject  this  plaintiff  therefrom  and  dig  holes  in,  and  erect 
twelve  telegraph  poles  upon  and  stretch  wires  over  said  premises 
throughout  the  whole  length  thereof,  from  to  ,  and 
the  defendant  is  now  in  possession  of  the  same  and  in  the  actual 
occupancy  thereof. 

V.  That  said  defendant  possesses  and  occupies  said  premises  for 
other  than  highway  purposes  without  leave  of  the  plaintiff,  without 
paying  or  offering  to  pay  the  plaintiff  any  compensation  therefor  and 
without  any  right  or  title  thereto,  and  now  unlawfully  withholds  pos- 
session thereof  from  the  plaintiff,  to  his  damage  five  hundred  dollars. 

Wherefore  the  plaintiff  prays  for  judgment  against  the  defendant 
that  it  remove  said  poles  and  wires  from  said  premises  and  surrender 
to  plaintiff  possession  thereof  and  pay  him  five  hundred  dollars  dam- 
age for  withholding  the  same,  besides  the  costs  of  this  action,  and 
for  such  other  relief  as  may  be  just. 

JOHN  M.   BULL, 

Plaintiff's  Attorney. 


Precedent    for    Complaint  —  Setting    out   Facts    on    which 

Plaintiff's  Title  is  Based. 

SUPREME  COURT  ~  Ulster  County. 

DANIEL  E.  DONOVAN 

agst.  }>78  N.  Y.  244. 

JAMES  H.  VANDEMARK. 


The  plaintiff  complains  and  alleges,  that  on  or  about  the  8th  day 
of  May,  1863,  Andries  Schoonmaker,  since  deceased,  made  his  last 
will  and  testament,  whereby,  among  other  things,  he  gave,  devised 
and  bequeathed  to  George  Chambers,  all  his  real  and  personal  estate 
of  every  name  and   kind   wheresoever  the  same  may  be,  in  trust, 


42    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  8.     The  Complaint. 


nevertheless,  for  the  necessary  support  and  maintenance  of  his  son 
Abraham  during  his  natural  life,  and  after  the  death  of  said  Abraham 
he  gave  and  bequeathed  the  said  estate  to  the  lawful  children  of  said 
Abraham,  their  heirs  and  assigns  forever. 

That  shortly  after  the  making  of  said  will,  the  said  Andries 
Schoonmaker  died,  having  title  to  and  being  the  owner  of  the  fol- 
lowing described  real  estates  and  premises,  to-wit: 

All  that  farm  of  land  late  of  Andries  Schoonmaker,  now  deceased, 
as  owned  and  occupied  by  him  at  the  time  of  his  decease,  situate  in 
the  town  of  Rosendale,  Ulster  County,  bounded  on  the  north  by 
premises  formerly  of  Nathaniel  Bruce  and  the  Rondout  Creek ;  east 
by  lands  of  Widow  Ann  Eliza  Wood  and  Egbert  Schoonmaker;  south 
by  Egbert  Schoonmaker  aud  Frederick  Schoonmaker;  and  west  by 
lands  of  Frederick  Schoonmaker  and  lands  formerly  of  Nathaniel 
Bruce,  containing  eighty  acres. 

That  said  will  was  duly  proved  and  admitted  to  probate  by  the 
surrogate  of  Ulster  County,  and  the  same  was  duly  recorded  on  the 
3d  of  July,  1863,  in  book  O  of  wills,  at  page  527,  in  the  Ulster 
County  surrogate's  office,  and  by  virtue  of  said  will  the  title  to  the 
aforesaid  real  estate  became  vested  in  the  said  George  Chambers. 

That  on  or  about  the  26th  day  of  July,  1875,  the  said  George 
Chambers  did  transfer,  grant  and  convey  unto  the  plaintiff,  Daniel 
E.  Donovan,  all  the  property,  real  and  personal,  mentioned  or 
referred  to  in  said  will,  and  all  his  right,  title  and  interest  in  and  to 
the  same,  and  each  and  every  part  thereof,  to  the  end  that  the  said 
Daniel  E.  Donovan  may  assume  and  execute  the  trusts  and  obliga- 
tions therein  mentioned  in  his  place  and  stead,  which  deed  and 
transfer  was  duly  approved,  sanctioned  and  confirmed  by  an  order 
of  the  Supreme  Court  of  the  State  of  New  York,  dated  July  31,  1875, 
and  duly  filed  and  entered  in  the  office  of  the  clerk  of  Ulster  County, 
and  by  which  order  the  plaintiff  was  expressly  appointed  to  execute 
said  trusts  under  said  will  in  the  place  and  stead  of  the  said  George 
Chambers.  That  under  and  by  virtue  of  the  said  will,  conveyance 
and  order,  the  title  of  the  aforesaid  premises  became  and  still  is 
vested  in  the  plaintiff  for  the  purposes  mentioned  in  said  will,  and 
the  plaintiff  is  entitled  to  the  possession  thereof. 

That  the  defendant  has  entered  upon  the  said  premises  and  is  en- 
gaged in  committing  waste  thereon  in  working,  filling  up  and  injur- 
ing a  valuable  cement  quarry  on  said  premises,  and  withholds  the 
possession  of  the  premises  hereinbefore  described  from  the  plaintiff, 
and  refuses  to  deliver  the  possession  thereof  to  the  plaintiff,  although 
the  same  has  been  repeatedly  demanded. 

Wherefore  the  plaintiff  demands  judgment: 

1.  For  the  possession  of  said  premises. 

2.  For  $5,000  damages  for  withholding  the  same. 

3.  That  the  defendant  be  restrained  by  injunction  from  commit- 
ting or  permitting  any  further  waste  on  the  said  premises. 

4.  For  the  costs  of  this  action. 

JOHN  E.  VAN  ETTEN, 

Plaintiff's  Attorney. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         43 
Art.  g.     Defences  Legal  and  Equitable  and  how  Pleaded. 


ARTICE  IX. 

Defences  Legal  and  Equitable  and  how  Pleaded. 

Sub.  I.  Defences  generally. 

2.  Adverse  possession  as  a  defence. 

3.  Equitable  defences. 

4.  Defences,  how  pleaded. 

Sub.  I.   Defences  Generally. 

Plaintiff  cannot  recover  upon  an  equitable  title.  Wright  v. 
Douglass,  3  Barb.  554;  reversed,  2  N.  Y.  373,  10  Barb.  99,  7  N.  Y. 
564;  Murray  M,  Walker,  31  N.  Y.  399;  Peck  v.  Newton,  46  Barb. 
173  ;  Potter  v.  Sisson,  2  Johns.  Cas.  321  ;  Kemball  v.  Van  Slyke,  8 
Johns.  487;  WJiite  v.  Carney,  16  Johns.  302;  Sinclair  v.  Field,  8 
Cow.  543;  More  v.  Spcllman,  5  Den.  225.  The  legal  title  will 
prevail  at  law  as  against  one  having  only  an  equitable  interest. 
Simons  v.  Chase,  2  Johns.  84;  jfackson  v.  Pierce,  2  Johns.  221. 
But  see  Boyd  v.  Boyd,  12  Misc.  119,  33  Supp.  74,  66  St.  Rep. 
731,  contra. 

An  outstanding  title  will  defeat  ejectment  though  the  defend- 
ant does  not  claim  under  it.  Loop  v.  Harrington,  9  Cow.  86 ;  Bloom 
v.  Bur  dick,  i  Hill,  130.  But  an  intruder  cannot  set  up  title  in  a 
third  person.  Jackson  v.  Harder,  4  Johns.  202.  Such  title  to 
avail  as  a  defence  must  be  out  of  the  plaintiff  at  the  commence- 
ment of  the  suit.     Raynor  v.  Tinierson,  46  Barb.  518. 

An  outstanding  estate  in  a  tenant  by  the  curtesy  will  defeat  eject- 
ment. Adair  v.  Lott,  3  Hill,  182;  Dodge  v.  Wellman,  43  How. 
427;  Cramer  v.  Benton,  4  Lans.  291  ;  Hicks  v.  SJieppard,  4  Lans. 
335  ;  HoppougJi  V.  Strubble,  60  N.  Y.  430 ;  Thompson  v.  Egbert,  i 
Hun,  484.  It  is  an  equitable  defence  that  plaintiff  received  the 
legal  title  as  security  for  moneys  advanced  by  him  to  defendant 
to  enable  him  to  pay  for  the  premises.  Dodge  v.  Wellman,  43 
How.  427. 

In  ejectment  the  court  will  only  grant  to  defendant  a  decree 
reforming  the  conveyance  where  all  the  parties  are  before  the 
court.  Cramer  v.  Benton,  4  Lans.  291  ;  Hicks  v.  Sheppard,  4  Lans. 
335.  Evidence  of  fraud  in  obtaining  title  on  the  part  of  plaintiff's 
grantor  is  proper  as  a  defence.  Ritter  v.  Worth,  58  N.  Y.  627. 
In  ejectment  against  a  lessee  from  the  city  of  New  York,  proof 
on  the  part  of  the  city,  which  was  admitted  to  defend,  of  excrcis- 


44    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 

ing  acts  of  ownership,  taking  proceedings  to  procure  title  to  the 
land,  etc.,  was  held  a  sufficient  defence  to  establish  possession 
under  claim  of  title.  Carlton  v.  Darcey,  90  N.  Y.  566,  reversing 
46  Super.  Ct.  484.  But  a  vendee  who  has  refused  to  accept  a 
deed  under  his  contract  cannot  set  up  an  outstanding  mortgage 
as  a  defence.  Pierce  v.  Tuttle,  53  Barb.  155.  If  the  plaintiff's 
evidence  shows  an  outstanding  title  in  a  third  person  there  can  be 
no  recovery.     Reformed  Church  v.  Schoolcroft,  5  Lans.  206. 

In  an  action  by  an  heir  to  recover  an  undivided  share  of  his 
ancestor's  estate,  the  defendant  may  set  up  as  a  defence  that  a 
conveyance  of  other  lands  was  made  to  plaintiff  by  the  ancestor 
by  way  of  advancement.  Bell  v.  Champlain,  64  Barb.  396.  A 
tort-feasor  cannot  set  up  a  defect  in  title  of  plaintiff,  as  assignee 
in  bankruptcy,  by  reason  of  irregularities  in  the  bankruptcy  pro- 
ceedings. Stevens  v.  Haiiser,  39  N.  Y.  302.  A  satisfied  mort- 
gage paid  off  by  the  defendant  will  not  bar  ejectment.  Watson 
V.  Cris,  II  Johns.  437.  A  conveyance  in  trust  by  the  lessor  after 
suit  brought  will  not  bar  ejectment.  Walton  v.  Leggett,  7  Wend. 
377.  Possession  of  real  estate  by  a  mortgagee,  acquired  by  force 
or  fraud,  will  not  constitute  a  defence  in  ejectment  brought  by 
the  owner.  Hoivell  v.  Leavitt,  95  N.  Y.  617.  The  fact  that  a 
defendant  obtained  possession  by  force  does  not  prevent  him 
from  showing  title  in  himself.  Stansbury  v.  Farmer,  9  Wend. 
201 ;  Jackson  v,  Morse,  16  Johns.  197.  That  the  defendant  is  in 
possession,  under  a  lease  from  the  assignee,  of  an  unpaid  mort- 
gage, is  a  complete  defence  in  case  the  lease  was  prior  to  the 
assignment.     Porter  v.  McGrath,  41  Super.  Ct.  84. 

If  defendant,  after  suit  brought,  became  assignee  of  a  mortgage 
upon  the  premises  which  became  forfeited  before  trial,  he  may 
defend  as  assignee  in  possession,  and  by  supplemental  pleadings 
the  suit  may  become  one  for  foreclosure  or  redemption.  Madison 
Avenue  Baptist  Church  v.  Oliver  Street  Baptist  Church,  73  N.  Y. 
82.  Where  both  parties  claim  under  the  same  person  by  quit- 
claim deed,  the  defendant  in  possession  may  show  that  their  com- 
mon grantor  had  not  title.     Henry  v.  Reichert,  22  Hun,  394. 

Where  a  farm  is  in  the  apparent  joint  occupation  of  husband 
and  wife,  the  question  of  occupancy  is  one  for  the  jury.  Martin 
V.  Rector,  30  Hun,  138.  Whatever  shows  the  plaintiff  is  not  en- 
titled to  immediate  possession  constitutes  a  defence  to  an  action 
of  ejectment.     Kurkelv.  Haley,  47  How.  75.     Proof  of  pendency 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         45 
Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 

of  another  action  between  the  same  parties,  to  recover  possession 
of  the  same  premises,  is  a  defence.  Ritter  v.  Worth,  58  N.  Y. 
627,  reversing  i  T.  &  C.  406. 

It  is  no  defence  to  an  action  of  ejectment  that  an  occupant 
who  claims  a  special  right  in  the  property  is  not  made  a  party. 
Hemiessy  v.  Paulsen,  12  Misc.  384 ;  147  N.  Y.  255  ;  69  St.  Rep.  539. 

A  simple  denial  of  plaintiff's  title  is  the  proper  mode  of  raising 
an  issue  in  regard  thereto,  and  it  is  neither  necessary  nor  proper 
to  set  out  the  evidence  of  defendant's  title.  Terr  ell  v.  Wheeler, 
13  Civ.  Pro.  R.  178. 

Where,  in  an  action  of  ejectment  the  plaintiff  failed  to  make 
tenants  who  are  the  actual  occupants  of  the  premises  parties,  as  is 
required  by  section  15 12  and  the  complaint  did  not  disclose  this 
omission,  the  remedy  of  the  defendant  is  to  set  up  the  non-joinder 
by  answer,  otherwise  the  objection  is  waived.  Clasonw.  Baldwin, 
37  St.  Rep.  213. 

Where  the  answer  was  a  general  denial,  it  was  held  that  this 
was  substantially  a  denial  that  defendant  was  guilty  of  unlawfully 
withholding  the  premises  as  alleged  in  the  complaint,  and  under 
it  defendant  was  entitled  to  prove  any  matter  which  would  defeat 
the  action,  and  plaintiff  had  the  burden  of  showing  a  right  to  the 
possession  of  the  premises.  Gilman  v.  Gihnan,  in  N.  Y.  265, 
reversing  i  St.  Rep.  567. 

A  defendant  who,  while  standing  in  the  relation  of  tenant  to 
the  plaintiff,  was  appointed  general  guardian  of  some  of  the  own- 
ers of  same,  is  not  permitted  to  deny  the  right  of  his  landlord 
nor  is  the  right  under  which  he  claims  to  occupy  the  premises 
any  defence  to  the  action  to  recover  their  possession  by  plaintiff. 
Cornell  v.  Hayden,  23  St.  Rep.  270. 

In  Second  Methodist  Episcopal  Church  v.  Humphreys,  142  N.  Y. 
137,  58  St.  Rep.  616,  the  question  of  what  constitutes  a  practical 
location  of  a  line  and  its  effect,  was  considered. 

Defendant  in  ejectment  claiming  a  practical  location  of  the  dis- 
puted boundary,  must  show  acquiescence  in  the  line  claimed  to 
have  been  so  established  for  at  least  twenty  years.  Clark  v. 
Davis,  28  Abb.  N.  C.  135. 

The  provisions  of  the  Revised  Statutes  avoiding  a  deed  of 
lands  in  the  possession  of  one  claiming  under  a  title  adverse  to 
that  of  the  grantor,  does  not  apply  to  a  deed  conveying  a  parcel 
of  land  the  greater  part  of  which  is  in  the  grantor's  possession, 


46    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 


but  where  by  reason  of  a  disputed  boundary  a  small  part  is  not  in 
his  actual  possession  at  the  time  of  the  delivery  of  the  deed. 
Clark  V.  Davis,  28  Abb.  N.  C.  135. 

Where  the  deeds  put  in  evidence  by  the  plaintiff  do  not  locate 
the  property  with  sufficient  accuracy  to  enable  the  court  or  jury 
to  determine  whether  it  is  described  by  the  words  of  the  com- 
plaint, there  can  be  no  recovery.  Jarvis  v.  Lynch,  36  St.  Rep. 
711. 

The  fact  that  twenty  years  have  elapsed  since  the  recovery  of 
the  judgment  for  possession  of  land,  during  which  plaintiff  has 
never  sought  to  enforce  it  by  a  writ  of  possession,  does  not  raise 
the  presumption  that  the  defendant  has  at  some  time  during  that 
period  paid  rent  and  costs  and  become  entitled  to  keep  the  pos- 
session.     Van  Rensselaer  \.  Wright^  31  St.  Rep.  897. 

Under  an  answer  denying  allegation  of  the  complaint  in  an 
action  of  ejectment,  the  defence  of  want  of  title  in  the  plaintiff  is 
admissible.     Benton  v.  Hatch,  122  N.  Y.  322. 

Where  plaintiff  was  never  in  possession,  and  defendant's  title 
by  adverse  possession  was  complete,  it  was  held  defendant  had  a 
right  to  fortify  his  title  or  purchase  peace  at  any  price,  and  of 
whom.soever  he  chose  without  being  estopped  thereby  from  set- 
ting up  his  title.     Greene  v.  Couse,  38  St.  Rep.  926. 

In  an  action  of  ejectment  brought  by  a  devisee  of  land  against 
a  legatee  whose  legacy  was  charged  on  the  land,  such  legacy  is 
not  available  as  a  counterclaim.     Dinan  v.  Coneys^  143  N.  Y.  544. 

The  answer  in  ejectment  need  not  set  up  specifically  facts 
which  merely  refute  the  claim  of  a  right  of  entry.  Crowley  v. 
Murpliy,  II  Misc.  579. 

Sub.  2.   Adverse  Possession  as  a  Defence. 

The  statutory  provisions  regulating  adverse  possession  as  a 
defence  to  an  action,  are  contained  in  sections  364  to  375  of 
the  Code,  and  properly  belong  under  that  part  of  procedure 
relative  to  limitations.  As  the  defence  is,  however,  peculiar 
to  actions  of  ejectment,  it  must  receive  some  consideration  in 
connection  with  that  topic.  Section  366,  in  effect,  provides  that 
the  defence  of  adverse  possession  is  not  available  unless  the  party 
making  the  defence  or  his  predecessor  in  the  title  was  seized  or 
possessed  of  the  premises  within  twenty  years  before  the  com- 
mission of  the  act  with  respect  to  which  it  is  made.     As  to  what 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    47 

Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 

constitutes  such  seizin  or  possession,  a  full  discussion  is  had  in 
Tyler  v.  Heidorn,  46  Barb.  439. 

Where  the  State,  through  its  agents,  took  land  for  a  canal, 
claiming  to  act  under  a  statute  which  provided  for  acquisition  of 
the  fee,  and  remained  in  possession  for  more  than  twenty  years, 
it  was  held  that  even  if  the  statute  were  unconstitutional,  the 
title  of  the  State  became  complete  and  absolute  by  adverse  po.s- 
session.     Eldridge  v.  City  of  BingJiamton,  120  N.  Y.  309. 

The  rule  with  regard  to  title  by  adverse  possession  is  restricted, 
however,  by  section  368,  which  provides  that  the  person  who  estab- 
lishes a  legal  title  to  the  premises  is  presumed  to  have  been  in 
possession  thereof  within  the  time  required  by  law,  and  that  the 
occupation  by  another  person  is  deemed  to  have  been  in  subordi- 
nation to  the  legal  title  unless  the  premises  have  been  held  and 
possessed  adversely  for  twenty  years  before  the  commencement 
of  the  action. 

Under  this  rule  the  burden  of  establishing  adverse  possession 
is  on  defendant  and  if  the  title  of  the  party  from  whom  plaintiff's 
title  is  deduced  be  admitted  or  established,  it  is  not  necessary  to 
prove  actual  possession  in  himself  or  in  any  of  the  intermediate 
grantees  from  whom  he  derives  title.  Stevens  v.  Haiiser,  39 
N.  Y.  302,  reversing  i  Rob.  50,  i  Abb.  N.  S.  391. 

To  overcome  the  presumption  raised  by  this  section,  the  pos- 
session must  be  under  a  claim  of  title  evinced  by  continuous  acts 
open,  notorious  and  consistent  only  with  such  claim,  exclusive  of 
every  other  right.  It  must  be  continuous  for  twenty  years. 
Buttery  v.  R.  IV.  &  V.  R.  R.  Co.  14  St.  Rep.  131;  Bliss  v. 
Johnson,  94  N.  Y.  235;  Doherty  v.  Matsell,  119  N.  Y.  646,  30 
St.  Rep.  88,  afifirming  11  Civ.  Pro.  392,  3  St.  Rep.  517,  54  N.  Y. 
Supr.  17. 

The  adverse  possession  must  continue  twenty  years  in  order  to 
establish  a  defence.  Clark  v.  Davis,  19  Supp.  191  ;  Woodruff  v. 
Paddock,  130  N.  Y.  618,  afifirming  56  Hun,  288. 

Continuous  adverse  possession  for  a  period  sufificient  to  bar  an 
action,  not  only  cuts  off  the  owner's  remedy,  but  divests  him  of 
his  estate  and  transfers  it  to  the  party  holding  adversely.  The 
adverse  possession  is  conclusive  evidence  of  title  in  the  latter. 
Baker  v.  Oakivood,  123  N.  Y.  16,  33  St.  Rep.  223,  affirming  49 
Hun,  416,  22  St.  Rep.  602,  3  Supp.  570. 

Peaceable  and  uncontrovertible  possession  for  forty  years  jus- 


48    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 


tifies  the  presumption  of  an  ancient  grant.     Mission  of  Immacu- 
late Virgin  v.  Cronin,  50  St.  Rep.  641. 

Title  acquired  by  adverse  possession  for  twenty  years  is  as 
strong  as  title  obtained  by  grant  and  is  not  forfeited  by  an  inter- 
ruption of  the  occupation  thereof.  Sherman  v.  Kane,  86  N.  Y. 
57.  But  possession  must  be  under  a  claim  of  title.  Higgin- 
botham  v.  Stoddard,  72  N.  Y.  94.  Bedell  v.  Shaw,  59  N.  Y.  46; 
Smith  V.  Faulkner,  48  Hun,  186,  15  St.  Rep.  837. 

A  general  assertion  of  ownership,  if  there  be  color  of  title,  how- 
ever groundless  in  fact,  will  sufifice.  American  Batik  Note  Co.  v. 
New  York  Elevated  R.  R.  Co.  129  N.  Y.  252. 

Under  section  369,  however,  it  is  provided  that  where  such 
occupation  is  under  a  written  instrument  or  judgment,  it  is  pre- 
sumed to  be  adverse. 

Entry  and  possession  under  a  deed  given  without  right  in  the 
grantor,  is  entry  under  color  of  title  and  the  possession  is  adverse. 
Sands  v.  Hnghes,  53  N.  Y.  287;  Hilton  v.  Bender,  2  Hun,  i, 
reversed  on  another  point  69  N.  Y.  75  ;  Towle  v.  Remsen,  70 
N.  Y.  303 ;  Rowland  v.  Newark  Cemetery  Ass'n,  66  Barb.  366, 

Possession  of  the  tenant  is  the  possession  of  the  landlord  until 
the  term  of  the  tenancy  expires,  and  adverse  possession  cannot 
commence  until  twenty  years  after  expiration  of  the  lease. 
Church  V.  Schoonmaker,  42  Hun,  225. 

What  constitutes  adverse  possession  under  claim  of  title  either 
written  or  unwritten,  and  the  relation  of  landlord  and  tenant  as 
effecting  adverse  possession,  is  defined  by  sections  370  to  373. 

Where  plaintiff's  evidence  showed  an  actual  inclosure  of  the 
property  in  dispute  as  part  of  his  farm,  continuously  for  more 
than  twenty  years,  but  defendant's  evidence  was  that  the  fence 
was  temporary  and  mainly  used  to  keep  plaintiff's  cattle  from  en- 
tering defendant's  woods,  it  was  held  the  question  as  to  whether 
the  portion  claimed  was  protected  by  an  inclosure  and  whether 
it  had  been  usually  cultivated  and  improved,  within  the  meaning 
of  the  statute,  was  for  the  jury.     Barnes  v.  Light,  116  N.  Y.  34. 

To  bar  the  true  owner,  the  adverse  possession    must   be  con- 
tinued during  the  whole  time.      Wheeler  v,  Spinola,  54  N.  Y.  377; 
Yates  V.  Vandebogert,  56  N.  Y.  526. 

A  person  cannot  acquire  title  to  land  which  is  uninclosed,  un- 
occupied and  unimproved,  by  taking  a  deed  thereof  from  one  not 
the  owner  and  then  going  upon  the  land  and  asserting  his  owner- 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    49 

Art.  g.     Defences  Legal  and  Equitable  and  how  Pleaded. 

ship  or  making  occasional  entries  upon  the  land  for  grass  or  sand. 
Price  V.  Brown,  loi  N.  Y.  669,  see  also  People  v.  Turner,  145 
N.Y.  451. 

A  lot  is  not  shown  to  have  been  usually  cultivated  or  improved 
when  defendant  had  occasionally  used  it  as  a  pasture  and  had  now 
and  then  taken  wood  and  timber  from  it  for  shingles  and  staves. 
Popev.  Hanmer,  8  Hun,  265,  affirmed,  74  N.  Y.  240. 

The  occasional  cutting  of  timber  on  land  which  is  not  inclosed, 
improved  or  cultivated,  by  the  holder  of  a  contract,  for  land 
which  does  not  cover  the  premises  in  question,  does  not  give  him 
such  possession  as  will  furnish  a  basis  for  adverse  possession. 
Weeks  V.  Martin,  32  St.  Rep.  811,  10  Supp.  656. 

Entry  under  license  to  collect  rent,  does  not  constitute  an  ad- 
verse possession.  Doherty  v.  Matsell,  16  St.  Rep.  593,  affirmed, 
17  St.  Rep.  747,  I  Supp.  426. 

The  fact  that  plaintiff  paid  taxes  and  caused  the  land  to  be 
divided  in  lots,  is  no  evidence  of  possession,  actual  or  constructive. 
Thompson  v.  BurJians,  61  N.  Y.  52,  reversing  61  Barb,  260. 

Gathering  sea-weed  gives  no  title.  Trustees  of  East  Hampton 
v.  Kirk,  68  N.  Y.  459.  Nor  the  cutting  of  ice  on  a  pond.  Gou- 
verneur  v.  National  Ice  Co.  33  St.  Rep.  i,  ii  Supp.  87. 

In  Conger  v.  Kinney,  16  Supp.  752,  42  St.  Rep.  906,  and  Conger 
V.  Treadway,  43  St.  Rep.  874,  132  N.  Y.  259,  affirming  28  St. 
Rep.  745,  it  was  held  that  the  use  of  a  plot  for  burial  purposes  for 
more  than  twenty  years,  under  the  circumstances,  gave  defendant 
title  by  adverse  possession. 

The  building  of  a  fence  around  land  does  not  alone,  as  matter 
of  law,  necessarily  constitute  a  taking  of  possession,  and  where 
the  land  is  at  the  time  occupied  and  cultivated  by  a  tenant  of  one 
claiming  title,  and  such  occupancy  continues  without  being  inter- 
fered with  in  any  degree  and  without  any  recognition  by  the  ten- 
ant of  any  right  in  the  builder  of  the  fence  as  the  owner  or  occu- 
pant, and  when  it  appears  the  fence  was  built  without  the  knowl- 
edge of  such  claimant,  a  finding  is  justified  that  the  building  was 
a  mere  entry,  not  a  termination  of  his  possession,  Landon  v. 
Townshend,  129  N.  Y.  166, 

A  brush  and  pole  fence  may  be  a  substantial  inclosure.  Hill  v. 
Edie,  17  St.  Rep.  255. 

The  intent  of  the  section  is  to  provide  with  reference  to  the 
inclosure  that  it  shall  be  merely  such  as  will  give  notice  to  the 
[Spfxtai.  Actions  —  4.] 


50    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  g.     Defences  Legal  and  Equitable  and  how  Pleaded. 

world  that  the  ownership  of  the  property  is  claimed.  Bolton  v. 
Shriever,  49  N.  Y.  Supr.  168. 

The  occupation  by  an  individual  of  a  portion  of  a  highway  is  a 
mere  obstruction  and  nuisance,  and  no  acquiescence  of  the  high- 
way officials  will  deprive  the  public  of  the  right  to  use  the  whole 
highway.     Driggs  v.  Phillips,  103  N.  Y.  "j"]. 

When  owners  of  adjoining  lands  and  those  under  whom  they 
claim  title  have,  for  more  than  twenty  years,  occupied  under 
claim  of  title  up  to  the  boundaries  fixed  and  have  recognized  it  as 
correct,  though  it  proves  not  to  be  the  true  line,  it  will  not  be 
disturbed.  Robinson  v.  Phillips,  56  N.  Y.  634;  see,  also,  Eldridge 
v.  Kenning,  12  Supp.  693,  35  St.  Rep.  190. 

Acquiescence  by  adjoining  owners  in  the  location  of  a  fence, 
built  off  the  true  line  but  which  was  not  continuous  for  the  whole 
width  of  the  lands,  nor  straight,  nor  permanent  structure,  cannot 
be  held  an  acquiescence  in  an  invisible  line  continued  in  the  same 
course.      Oiisby  v.  jfones,  73  N.  Y.  621. 

Where  a  fence  is  erected  off  of  a  proper  line,  while  the  land  is 
uncultivated,  and  is  by  agreement  retained  as  a  division  fence 
until  it  should  be  convenient  to  build  a  better  and  permanent  one 
on  the  true  line,  it  does  not  warrant  either  of  the  adjoining  own- 
ers to  claim  by  adverse  possession  up  to  the  fence.  Jones  v. 
Smith,  73  N.  Y.  205. 

No  possession  can  be  deemed  adverse  to  a  party  who  has  not 
at  the  time  the  right  of  entry  and  possession.  Robinso7i  v.  Phil- 
lips, 56  N.  Y.  634. 

Possession  does  not  begin  to  be  adverse  as  against  a  person  en- 
titled after  the  determination  of  a  prior  estate,  during  the  con- 
tinuance of  that  estate.  Fleming  v.  Burnham,  100  N.  Y.  i, 
reversing  36  Hun,  456. 

Occupancy  by  permission  does  not  constitute  adverse  posses- 
sion. Borden  v.  S.  S.  R.  R.  Co.  5  Hun.  184,  affirmed  6y  N.  Y. 
588. 

A  squatter  does  not  obtain  title  by  adverse  possession.  Matter 
of  Mayor  of  New  York,  44  St.  Rep.  189,  18  Supp.  82. 

Adverse  possession  not  founded  on  any  written  instrument,  ex- 
tends only  to  the  land  fenced,  cultivated  or  improved.  Becker  v. 
Van  Valkenburg,  29  Barb.  319. 

The  rule  prescribing  either  a  substantial  inclosure  or  usual  cul- 
tivation or  improvement,  as  a  condition  of  adverse  possession  by 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    5  I 

Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 

the  person  claiming  title  to  the  land,  not  founded  upon  a  written 
instrument,  has  no  application  to  an  easement  as  of  passage. 
Every  user  is  presumed  to  have  been  under  claim  of  title  and 
adverse,  and  the  burden  is  upon  the  party  alleging  that  the  user 
has  been  by  virtue  of  a  license  or  permission,  to  prove  that  fact 
by  afifirmative  evidence.  Colbjirn  v.  Marsh,  68  Hun,  269,  52  St. 
Rep.  378,  22  Supp.  990. 

Section  373  provides  that  the  possession  of  a  tenant  is  deemed 
possession  of  the  landlord  until  twenty  years  after  the  termination 
of  the  tenancy.  The  effect  of  this  section  is  to  prevent  the  run- 
ning of  the  claim  to  adverse  possession  in  favor  of  a  tenant  for  the 
period  prescribed,  whether  he  has  acquired  another  title  or  whether 
he  has  claimed  to  hold  adversely.  For  the  twenty  years  the 
landlord  has  the  benefit  and  the  protection  of  the  statutory  pre- 
sumption against  the  consequences  of  his  fault  or  mistake  or  acci- 
dent and  against  acts  of  his  tenant.  Church  v.  Schooitmaker,  115 
N.  Y.  570,  26  St.  Rep.  779,  affirming  42  Hun,  225. 

The  possession  of  the  tenant  is  in  subordination  to  the  title  of 
the  landlord  and  continues  so  during  the  running  of  the  term  and 
for  twenty  years  after  the  end  of  the  term,  notwithstanding  any 
claim  by  the  tenant  or  his  successors  of  a  hostile  title.  Whiting 
V.  Ediimnds,  94  N.  Y.  309. 

Where  the  relation  of  landlord  and  tenant  has  been  once  estab- 
lished, the  possession  of  the  latter  and  of  his  grantee  is  that  of  the 
landlord,  and  not  hostile  or  adverse ;  this  is  so  where  the  grantee 
has  taken  a  deed  of  the  fee  in  ignorance  of  the  fact  that  his 
grantor  stood  in  the  relation  of  tenant,  the  latter  denying  any 
such  relation.  Bedloiv  v.  N.  Y.  Floating  Dry  Dock  Co.  112  N.  Y. 
263. 

Where  there  is  no  written  lease,  the  tenancy  will  not  be  pre- 
sumed to  continue  after  twenty  years  from  the  last  payment  of 
rent.  After  that  time  it  will  be  presumed  that  the  former  tenant 
held  under  a  right  adverse  to  his  former  landlord.  Twenty  years 
of  such  adverse  possession  bars  an  action.  Hasbroiick  v.  Burhans, 
6  St.  Rep.  299. 

But  on  a  grant  in  fee  reserving  rent  where  rent  remains  unpaid 
for  more  than  twenty  years,  though  it  may  be  presumed  that  rent 
which  accrued  more  than  twenty  years  past  has  been  paid,  an 
extinguishment  of  the  covenant  is  not  presumed.  Central  Bank 
V.  Hey  dor  II.  48  N.  Y.  260 ;  Lyon  v.  Odcll,  65  N.  Y.  28. 


52  ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 

Section  375  relates  to  certain  disabilities  excluded  from  time  to 
commence  the  action.  That  is  to  say  extends  the  time  within 
which  persons  may  maintain  an  action  to  recover  property  or 
interpose  a  defence  or  counterclaim  where  they  are  infants,  insane 
or  imprisoned  on  a  criminal  charge.  Up  to  1870  the  statute  also 
included  married  women  in  this  class. 

Adverse  possession  as  against  an  infant,  however,  cannot  be  ex- 
tended by  his  disability  for  more  than  ten  years  after  the  disabil- 
ity ceases.     Hoepfner  v.  Sevestorc,  30  St.  Rep.  296. 

Where  the  evidence  showed  defendant  and  his  predecessor  had 
occupied  the  premises  for  more  than  twenty  years  and  there 
was  any  conflict  in  the  evidence  as  to  the  adverse  holding,  the 
case  should  be  submitted  to  the  jury.  Tindale  v.  Powell,  88 
Hun,  193,  68  St.  Rep.  622,  34  Supp.  659. 

Adverse  possession  is  good  only  for  the  part  of  the  premises 
actually  occupied.  Corning  v.  Troy  Iron  Factory,  34  Barb.  529, 
44  N.  Y.  617.  Adverse  possession,  to  constitute  a  defence,  must 
be  actual  and  hostile,  and  not  a  mere  trespass.  McGregor  v. 
Comstock,  17  N.  Y.  162,  afifirming  16  Barb.  427;  Fosgate  v.  Her- 
kimer Mfg.  Co.  12  N.  Y.  580;  Kent  v.  Narcourt,  33  Barb.  491  ; 
Miller  v.  Piatt,  5  Duer,  272.  As  to  what  is  required  in  a  plea  of 
ejectment,  see  People  v.  Van  Rensselaer,  9  N.  Y.  291,  reversing  8 
Barb.  189;  People  v.  Livingston,  8  Barb.  253;  People  v.  Arnold, 
4  N.  Y.  508.  As  to  the  effect  of  a  judgment  based  on  paper  title, 
when  sought  to  be  upheld  on  ground  of  adverse  possession,  see 
Armstrong  v.  DuBois,  90  N.  Y.  95.  The  possession  must  be 
under  claim  of  some  specific  title  and  not  a  general  assertion  of 
ownership.  Higinbotham  v.  Stoddard,  72  N.  Y.  94,  afifirming  9 
Hun,  I.  But  it  need  not  be  shown  that  the  adverse  occupant 
declared  he  was  occupying  adversely.  Christie  v.  Gage,  2  T.  &  C. 
344.  Possession,  under  a  title  not  adverse  to  the  grantor,  is  not 
enough,  nor  under  a  fraudulent  title.  Nash  v.  Kemp,  49  How. 
522;  Moody  v.  Moody,  16  Hun,  189. 

The  fact  that  a  person  for  twenty  years  claimed  title  to  lands 
that  were  uninclosed,  unimproved,  surveyed  them,  marked  the 
boundaries  by  monuments  and  cut  trees  thereon  from  time  to 
time  and  paid  taxes  for  a  few  years,  does  not  establish  adverse 
possession,  nor,  in  the  absence  of  constructive  possession,  autho- 
rize the  presumption  of  a  grant  from  the  true  owner.  Mission  of 
the  Immaculate  Virgin  v.  Cronin,  143  N.  Y.  524. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).  53 

Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 

The  practical  location  of  the  boundary  line  and  the  acquies- 
cence therein  by  the  parties  for  more  than  twenty  years,  is  con- 
clusive as  to  the  location  of  the  line.  Smith  v.  Faulkner,  15  St. 
Rep.  637. 

To  make  possession  without  paper  title  a  bar  in  ejectment,  it 
must  be  shown,  by  strict  proof,  to  have  been  hostile  in  its  incep- 
tion. Jackson  V.  Parker,  3  Johns.  Cas.  124;  Brandt  v.  Ogden,  i 
Johns.  156.  To  give  effect  to  a  claim  of  title  as  a  ground  of  ad- 
verse possession,  the  color  of  title  must  purport  to  be  valid,  but  it 
need  not  be  valid  in  fact.  Humbert  v.  Trinity  Church,  24  Wend. 
587;  LaFrombois  v.  Jackson,  8  Cow.  589;  Northrup  v.  Wright,  7 
Hill,  476;  Monroe  v.  Merchant,  26  Barb.  383. 

The  possession  of  a  vendee,  under  an  executory  contract,  cannot 
become  adverse  until  he  has  complied  with  the  conditions  of  his 
contract  as  against  his  vendor ;  Jackson  v.  Camp,  I  Cow.  605 ; 
then  it  may  become  adverse.  Vroo^nan  v.  Shepherd,  14  Barb. 
441 ;  Briggs  V.  Prosscr,  14  Wend.  227,  He  may  defend  against 
all  the  world,  except  his  grantor,  before  his  possession  becomes 
adverse  as  to  him.  Whitney  \.  Wright,  15  Wend.  171.  A  per- 
son holding  under  a  license  cannot  set  up  adverse  possession,  nor 
can  his  grantee.  Luce  v.  Carley,  24  Wend.  45 1  ;  Babcock  v. 
Utter,  I  Keyes,  397. 

A  tenant  cannot  plead  adverse  possession  against  his  landlord. 
Jackson,  ex  dem.  Fisher,  v.  Creal,  13  Johns.  116;  Tyler  v.  Hci- 
dorn,  46  Barb.  439 ;  Corning  v.  Troy  Iro?i  &  Nail  Factory,  34 
Barb.  485.  The  claim,  in  order  to  sustain  the  defence  of  adverse 
possession,  must  be  of  the  entire  title.  Howard  v,  Howard,  \J 
Barb.  663;  Smith  v.  Biirtis,  9  Johns.  180.  And  the  possession 
will  not  be  deemed  adverse  to  a  party  who  has  not,  at  the  time, 
the  right  of  entry  and  possession.  Doherty  v.  Qiiinn,  3  St.  Rep. 
517.  Where  a  fence  is  built  and  each  party  holds  and  occupies 
up  to  it  as  the  line,  possession  is  adverse.  Stuyvesant  v.  Thoinp- 
kins,  9  Johns.  61 ;  Jones  v.  Sjnith,  64  N.  Y.  180;  see,  also,  Crary 
V.  Goodman,  22  N.  Y.  175.  Possession  for  less  than  the  statutory 
period  is  not  a  bar.  Robinson  v.  Phillips,  56  N.  Y.  634;  Drew  v. 
Swift,  46  N.  Y.  204;  Jackson  v.  Right niyre,  16  Johns.  314.  Ad- 
verse possession  must  be  pleaded  in  order  to  be  available.  Hansce 
v.Mead,2(Z\v.Vxoz.  175.  Query:  How  far  is  this  rule  modified  by 
the  decision  as  to  effect  of  adverse  possession  in  Baker  v.  Oak^ 
wood,  123  N.  Y.   16. 


54    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


^^yoMUw 


Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 


The  rule  as  between  landlord  and  tenant  that  adverse  posses- 
sion does  not  run,  applies  only  where  the  conventional  relation 
exists.  Sands  v.  Hughes,  53  N.  Y.  287.  As  to  the  rule  with 
reference  to  purchases  at  execution  sales,  see  Jackson  v.  Bradford, 
4  Wend.  619;  Jackson  v.  Collins,  3  Cow.  89;  Jackson  v.  Town,  4 
Cow.  599;  Jackson  v.  Graham,  3  Caines,  188;  Jackson  v.  Hin- 
man,  10  Johns.  292;  Jackson  v.  Brink,  5  Cow.  483;  Biglow  v. 
Finch,  1 1  Barb.  498. 

Where  the  answer  admitted  that  defendants  other  than  the 
party  answering,  were  holding  adversely  to  the  plaintiffs  and  to 
herself  but  alleged  that  the  deed  to  the  grantor  had  been  fraudu- 
lently obtained,  and  asked  its  cancellation,  and  that  she  together 
with  the  other  plaintiffs  might  recover  the  lands  as  tenants  in 
common,  it  was  held  that  this  new  matter  was  relevant  to  the 
issue,  even  though  the  issue  could  not  be  maintained,  and  could 
not  be  stricken  out  as  irrelevant.      Jones  v.  Halves,  24  St.  Rep. 

820. 

To  make  the  possession  of  land  adverse  so  as  to  avoid  a  deed 
under  the  statute  against  champerty,  such  possession  must  be 
under  claim  of  specific  title,  and  general  assertion  of  ownership 
irrespective  of  any  particular  title  is  insufficient.  Crary  v.  Good- 
man, 22  N.  Y.  170. 

Under  the  Statute  of  Limitations,  the  adverse  holding  which 
will  ripen  into  a  title  in  twenty  years,  need  only  be  under  a  claim 
of  title,  but  under  the  Statute  of  Champerty,  a  possession  for  a 
shorter  period  which  will  render  void  a  deed  to  any  other  person, 
must  be  under  a  title  adverse  to  that  of  the  grantor  in  such  deed. 
SmitJi  V.  Fajilkner,  i  5  St.  Rep.  637. 

The  statute  making  a  grant  of  land  void  if  in  the  actual  posses- 
sion of  one  claiming  under  an  adverse  title,  does  not  invalidate  in 
whole  or  in  part  a  grant  when  the  owner  is  possessed  and  delivers 
possession  of  the  greater  part  of  the  land  conveyed,  but  by  reason 
of  a  disputed  boundary  line  a  small  part  of  it  is  not  in  his  actual 
possession  at  the  delivery  of  his  grant.  Danziger  v.  Boyd,  30  St. 
Rep.  889,  120  N.  Y.  628,  affirming  12  St.  Rep.  64;  Clark  v.  Davis, 
28  Abb.  N.  C.  135,  19  N.  Y.  Supp.  191  ;  Zahm  v.  Dopp,  46  St. 
Rep.  920,  19  N.  Y.  Supp.  963. 

A  deed  given  while  the  true  owner  is  in  actual  possession,  by 
his  tenants,  is  void  and  insufficient  as  a  basis  for  an  adverse  pos- 
session.     McRoberts  v.  Bergman,  32  St.  Rep.  nil. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).  55 

Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 


Continuous  adverse  possession  of  land  for  a  period  sufficient  to 
bar  an  action  for  its  recovery  not  only  cuts  off  the  owner's  remedy, 
but  divests  him  of  his  estate,  and  transfers  it  to  the  party  hold- 
ing adversely.  The  adverse  possession  is  conclusive  evidence  of 
title  in  the  latter.      Baker  v.  Oakwood,  123  N.  Y.  16. 

Sub.  3.   Equitable  Defences. 

Where  a  recovery  in  ejectment  is  attempted  to  be  prevented  by 
the  interposition  of  an  equitable  counterclaim,  such  answer  must 
contain  all  the  elements  of  a  complaint.  A  mere  setting  up  of 
an  agreement,  with  an  assertion  of  readiness  on  the  part  of  the 
defendant  to  perform,  and  a  refusal  or  neglect  on  the  part  of  the 
plaintiff  to  do  so  with  no  demand  except  for  costs,  is  insufficient. 
Dewey  v.  Hoag,  15  Barb.  365.  In  ejectment  against  an  equitable 
owner  in  fee,  the  defendant  may  have  affirmative  relief  removing 
a  cloud  upon  his  title.     Earle  v.  Willard,  5  Week.  Dig.  155. 

Where  as  against  proof  of  a  clear  legal  title  in  the  plaintiff,  the 
defendant  relies  upon  an  equitable  claim,  he  is  bound  to  establish 
it  as  if  he  had  brought  an  action  for  equitable  relief.  Dyke  v. 
Spargur,  143  N.  Y.  651,  62  St.  Rep.  529. 

Facts  which  would  entitle  the  defendant  to  an  order  for  specific 
performance  of  a  contract  to  convey  the  property,  can  be  availed 
of  as  a  defence  to  an  action  of  ejectment.  Cooper  v.  Monroe,  yy 
Hun,  I,  28  Supp.  222,  59  St.  Rep.  418. 

Where  the  purchaser  under  a  contract  is  in  default  in  his  pay- 
ment and  the  vendor  brings  ejectment,  the  purchaser  may  set  up 
any  equitable  defence  which  he  may  have ;  he  may  tender  full 
performance  and  ask  judgment  that  the  vendor  convey  to  him  or 
may  say  that  he  defaulted  because  the  vendor  was  unable  to  per- 
form, and  ask  that  upon  his  surrender  of  possession  the  vendor 
repay  him  what  he  has  paid,  or  he  may  set  up  any  other  equity 
arising  out  of  the  contract.     RJioades  v.  Freeman,  9  App.  Div.  20. 

A  defendant  may  allege  and  prove  that  he  is  equitably  the 
owner  of  the  premises  and  entitled  to  a  conveyance  thereof  or 
that  the  land  was  intended  to  be  conveyed  to  him  but  by  mistake 
in  the  description  was  not  included.  Chaflin  v.  Gantz,  17  Misc. 
425. 

Where  it  appears  that  the  plaintiff's  devisor  had  agreed  with 
defendant  that  on  compliance  with  certain  conditions  she  would 
convey  or  devise  the  land  in  question,  it  was  held  that  as  defend- 


56    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 


ant  could  compel  specific  performance,  it  constituted  a  defence  to 
the  action.     Kenyoji  v.   You/an,  25  St.  Rep.  299. 

An  equitable  mortgage  cannot  be  set  up  to  defeat  the  legal 
title.  Lowell  v.  Parkhurst,  4  Wend.  369.  But  an  equitable  de- 
fence may  be  set  up  and  equitable  relief  obtained.  Glacken  v. 
Brown,  39  Hun,  294;  Reqiia  v.  Holmes,  26  N.  Y.  338;  Traphagan 
V.  Traphagan,  40  Barb.  537;  Cavalli  v.  Allen,  57  N.  Y.  508; 
Carpenter  v.  Ottley,  2  Lans.  451  ;  Pierce  v.   Tuttle,  53  Barb.  155. 

In  You?ig  V.  Overbaugh,  145  N.  Y.  158,  a  parol  gift  of  real 
estate  and  parol  promise  to  convey  was  sustained  as  an  equitable 
defence  to  an  action  for  ejectment  on  the  authority  of  Freeman  v. 
Freeman,  43  N.  Y.  34;  Lobdell  v.  Lobdell,  36  N.  Y.  330,  the 
defendant  having  expended  moneys  on  the  property  relying  on 
the  gift. 

Under  an  answer  denying  the  plaintiff's  ownership  and  alleging 
ownership  in  defendant's  lessors,  where  the  equitable  title  was 
tried,  it  was  held  judgment  would  be  sustained.  House  v. 
Howell,  6  N.  Y.  Supp.  799. 

An  equitable  title  is  a  good  defence  to  an  action  of  ejectment 
and  the  same  state  of  facts  which  would  entitle  a  defendant  to 
the  reformation  of  the  deed,  would  establishr  his  equitable  right 
to  the  possession  of  land  and  defeat  an  action  of  ejectment. 
Glacken  v.  Brozvn,  39  Hun,  294.  To  same  effect,  see  Willard  v. 
Bullard,  18  St.  Rep.  794. 

Where  the  owner  of  real  estate  had  agreed  to  pay  his  sister  if 
she  would  care  for  and  maintain  their  mother,  and  having  done  so 
during  the  mother's  life,  the  sister  was  given  possession  of  the  real 
estate  by  the  owner  who  agreed  to  give  it  to  her  in  payment  for 
the  services;  held  that  she  was  entitled  to  retain  the  property 
and  could  set  up  the  facts  as  an  equitable  defence  against  eject- 
ment brought  by  the  residuary  devisees  of  her  brother.  Cooper 
V.  Monroe,  77  Hun,  i,  59  St.  Rep.  418,  28  Supp.  222. 

Facts  which  were  held  insufficient  to  establish  an  equitable  de- 
fence, were  considered  \r\  Schierloh  v.  Schierloh,  72  Hun,  150,  55 
St.  Rep.  348,  25  Supp.  6y6. 

In  the  action  of  ejectment,  proof  of  some  equitable  right  or 
title  in  the  third  person  with  whom  defendant  does  not  connect 
himself,  is  no  defence  to  the  superior  legal  title  in  plaintiff.  This 
rule  was  applied  where  plaintiff  claimed  under  foreclosure  sale  to 
defendant  under  a  contract  of  sale  by  the  mortgagee  in  possession 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).  57 

Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 


of  one  who  had  no  notice  of  an  amendment  to  the  judgment  in 
foreclosure  changing  the  place  of  sale  and  under  which  amended 
judgment  and  sale  plaintiff  claimed.  Wtn^;'  v.  Be  La  Rionda,  131 
N.  Y.  422,  43  St.  Rep.  305. 

In  the  action  of  ejectment,  defendant  will  not  be  permitted  to 
set  up  an  escheat  to  the  State  for  the  purpose  of  defeating 
plaintiff's  title.  Croner  v.  Cowdrey,  139  N.  Y.  471,  54  St. 
Rep.  728. 

Sub.  4.   Defences,  How  Pleaded. 

Answer. — Under  an  answer  denying  the  allegations  of  the  com- 
plaint, the  defence  of  want  of  title  in  plaintiff  is  admissible. 
Benton  v.  Hatch,  122  N.  Y.  322,  affirming  43  Hun,  142,  followed  33 
St.  Rep.  517. 

An  answer  setting  out  what  was  the  general  issue  under  the 
former  practice,  to  the  effect  that  defendant  is  not  guilty  of  un- 
lawfully withholding  the  premises  claimed  by  plaintiff,  as  alleged 
in  the  complaint,  does  not  prevent  defendant  from  giving  any  evi- 
dence of  matter  which  would  defeat  the  action  of  the  plaintiffs, 
and  does  not  relieve  the  plaintiff  from  the  necessity  of  showing  a 
right  to  the  possession  of  the  premises  as  against  the  defendant 
at  the  time  of  the  commencement  of  the  action.  Oilman  v.  Gil- 
man,  III  N.  Y.  265,  19  St.  Rep.  283,  followed  Hill  v.  Board  of 
Water  and  Sewer  Commissioners,  60  St.  Rep.  20. 

Under  a  general  denial  the  defendant,  if  not  a  mere  trespasser 
or  intruder,  may  show  title  out  of  the  plaintiff  at  the  commence- 
ment of  the  action  without  even  connecting  himself  with  such 
outstanding  title  in  any  way — Gillctt  v.  Stanley,  i  Hill,  I2!  ; 
Schauber  V.Jackson,  2  Wend.  18;  Raynor  v.  Timer  son,  d^^  Barb. 
518  —  since  the  plaintiff  can  only  recover  on  the  strength  of  his 
title,  not  on  the  weakness  of  his  adversary's.  Lainont  v.  Cheshire, 
65  N.  Y.  30;    Wallace  v.  Swijtton,  64  N.  Y.  188. 

An  allegation  in  an  answer  that  the  premises  in  question 
equitably  belong  to  the  children  of  the  defendant  and  that 
any  title  plaintiff  may  have  is  for  their  use  and  benefit,  is  of 
no  avail,  no  facts  being  pleaded.  De  Silva  v.  Flynn,  9  Civ.. Pro 
R.  426. 

Under  a  general  denial,  evidence  is  admissible  to  show  an 
estoppel.  Creqiie  v.  Sears,  17  Hun,  123.  A  defendant  who 
claims    title    by    adverse    possession    cannot    deny    occupancy. 


58         ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT.) 
Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 

Porter  v.  McGrath,  41  Super.  Ct.  84.  But  a  mere  denial  of  pos- 
session, or  of  unlawful  withholding,  does  not  put  the  plaintiff's 
title  in  issue.  Ford  v.  Sampso7i,  30  Barb.  183.  Whatever  shows 
that  the  plaintiff  is  not  entitled  to  the  immediate  possession  of 
the  premises  claimed,  constitutes  a  defence  in  an  action  of  eject- 
ment. Hunter  v.  Trustees  of  Sandy  Hill,  6  Hill,  407.  A  defend- 
ant cannot,  however,  avail  himself  of  an  outstanding  title,  barred 
by  the  statute  of  limitations,  or  which  has  never  been  fully  vested 
in  the  grantee.  Chapman  v.  D.,  L.  &  W.  R.  R.  Co.  3  Lans.  261 ; 
Hoag  V.  Hoag,  35  N.  Y.  469.  Defendant  may  interpose  an  equit- 
able defence,  but  it  must  be  pleaded.  Traphagen  v.  Traphagen, 
40  Barb.  537;  Thurman  v.  Anderson^  30  Barb,  65 1;  Rcqua  v. 
Holmes,  16  N.  Y.  193,  19  How.  430,  26  N.  Y.  338;  Corkhill 
v.  Landers,  44  N.  Y.  218;  Chase  v.  Peck,  21  N.  Y.  581  ;  Crary  v. 
Goodman,  12  N.  Y.  266;  Dewey  v.  Hoag,  15  Barb.  365;  Pope 
V.  Cole,  64  Barb.  406 ;  Phillips  v.  Gorham,  17  N.  Y.  270 ;  Webster  v. 
Bond,  9  Hun,  437;  Stone  v.  Sprague,  20  Barb.  509;  Cavalli 
V.Allen,  57  N.  Y.  508;  Hoppongh  v.  Struble,  60  N.  Y.  430. 

An  answer  in  ejectment  need  not  specifically  plead  facts  which 
merely  refute  the  claim  of  a  right  of  entry.  Crowley  v.  Murphy, 
II  Misc.  579,  32  Supp.  806,  66  St.  Rep.  189. 

As  to  whether  it  is  necessary  to  plead  adverse  title  in  order  to 
make  that  defence  available,  see  Hansee  v.  Mead,  2  Civ.  Pro.  R. 
175,  and  compare  with  Baker  v.  Oakwood,  123  N.  Y.  16. 

Demurrer. —  Where  it  appears  by  the  complaint  that  plaintiff 
is  a  minor,  the  objection  must  be  taken  by  demurrer  or  it  will  be 
deemed  waived.  Seaton  v.  Davis,  i  T.  &  C.  91  ;  Bartholomew  v. 
Lyon,  67  Barb.  86. 

A  complaint  against  four  defendants,  three  of  whom  were 
alleged  to  be  in  possession  of  the  whole  premises  and  the  fourth 
in  the  wrongful  possession  of  a  portion  of  the  premises  under  the 
other  three,  was  held  not  demurrable.  The  remedy  in  an  action 
where  the  complaint  fails  to  definitely  describe  the  property  sued 
for,  is  by  motion  to  make  more  definite  and  not  by  demurrer. 
Rank  v.  Levinus,  5  Civ.  Pro.  R.  368,  50  Super.  Ct.  159. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT.)  59 

Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 

Precedent  for  Answer  —  Setting  up  Equitable  Defence. 

SUPREME  COURT  — County  of  Ulster. 


EDWIN  YOUNG,  as  Trustee  under  the 
Will  of  THOMAS  CORNELL,  Deceased, 

agsL 

SARAH  B.  OVERBAUGH. 


►  145  N.  v.  158. 


The  defendant,  answering  the  complaint  ^"of  the  plaintiff  herein, 
shows  to  the  court: 

First.  She  denies  that  Thomas  Cornell,  deceased,  was  at  the  time 
of  his  death,  or  for  many  years  before,  entitled  to  the  possession  of 
the  premises  described  in  the  complaint,  or  that  he  was  the  equitable 
owner  thereof,  and  denies  that  this  plaintiff  is  the  equitable  owner 
of  such  property,  or  that  he  is  entitled  to  the  possession  thereof. 

Second.  This  defendant  further  shows,  that  she  is,  and  of  right 
ought  to  be  the  owner,  and  is  entitled  to  possession  of  the  premises 
described  in  the  complaint.  That  the  said  premises  were  by  said 
Thomas  Cornell,  deceased,  promised  and  agreed  to  be  conveyed  to 
this  defendant  for  and  in  consideration  of  this  defendant  residing 
and  remaining  in  the  city  of  Kingston  and  of  certain  expenditures 
and  improvements  which  were  to  be  made  and  were  made  upon  the 
premises  by  her. 

This  defendant  shows  that  many  years  since  said  Thomas  Cornell 
agreed  to  give  this  defendant  the  property  in  question  upon  terms 
and  conditions  which  she  has  complied  with  in  full  on  her  part,  and 
that  relying  upon  the  said  promise  and  agreement  of  the  said  Thomas 
Cornell,  and  at  his  request  and  with  his  knowledge,  this  defendant 
has  paid,  laid  out  and  expended  large  sums  of  money,  in  erecting  a 
house  and  other  buildings  upon  the  property,  in  improving  and  car- 
ing for  the  same  and  making  it  more  valuable;  that  the  said  moneys 
were  paid  out  and  expended  with  the  knowledge  and  at  the  sugges- 
tion of  the  said  Thomas  Cornell,  and  that  this  defendant  went  into 
and  has  remained  in  the  possession  of  the  premises  at  the  request 
of  the  said  Thomas  Cornell,  and  on  such  promise  and  request  paid 
the  taxes  and  insurance  thereon  and  kept  the  same  in  repair  and 
treated  them  as  her  own  property. 

Wherefore  defendant  demands: 

First.   That  the  complaint  be  dismissed. 

Second.  That  the  plaintiff  be  adjudged  and  decreed  to  deliver  to 
this  defendant  a  good  and  sufficient  conveyance  of  the  premises 
described  in  the  complaint. 

Third.  That  she  have  her  costs  of  this  action. 

PARKER  &  FIERO. 

Attorneys  for  Defendant. 


6o    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT.) 


Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 


Precedent  for  Answer  —  Adverse  Possession. 

SUPREME  COURT  — Broome  County. 


HALLAM  ELDREDGE 

agst. 

THE  CITY  OF  BINGHAMTON. 


'  120  N.  Y.  309. 


First.  The  defendant  the  City  of  Binghamton  answering  the  com- 
plaint of  the  plaintiff  herein,  on  information  and  belief  denies  each 
and  every  allegation  of  said  complaint  contained  in  the  first  count 
thereof. 

Second.  For  a  second  and  further  answer  the  defendant  admits 
that  so  much  of  the  premises  described  in  the  complaint  as  are  con- 
tained within  the  limits  of  State  street  as  laid  out  and  recorded  by 
the  City  of  Binghamton  as  a  public  street,  is  in  use  as  a  public 
street,  and  with  the  exception  of  this  admission,  the  defendant 
denies  each  and  every  allegation  of  the  second  count  of  said  com- 
plaint. 

Third.  For  a  third  and  further  answer  the  defendant,  upon  infor- 
mation and  belief,  denies  each  and  every  allegation  of  said  complaint 
not  hereinbefore  admitted  or  denied. 

Fourth.  For  a  fourth  and  further  answer,  the  defendant  alleges  on 
information  and  belief  that  the  plaintiff,  his  ancestors,  predecessors- 
and  grantors  have  not,  nor  have  either  of  them  been  seized  or  pos- 
sessed of  the  premises  in  question  within  forty  years  last  past  before 
the  commencement  of  this  action. 

Fifth.  For  a  fifth  and  further  answer  the  defendant  alleges  on 
information  and  belief  that  by  chapter  32  of  the  Laws  of  1833  passed 
February  23d,  the  construction  of  a  canal  by  the  canal  authorities  to 
pass  through  the  then  village  of  Binghamton  was  authorized;  which 
canal  has  always  been  known  as  the  Chenango  Canal ;  and  that  by 
said  act  and  general  laws  of  the  State,  the  canal  authorities  were 
authorized  to  take  possession  of  and  acquire  the  title  to  the  neces- 
sary land  to  build  said  canal;  and  that  in  pursuance  of  said  act,  and 
under  and  by  virtue  of  the  general  laws  of  the  State,  such  proceed- 
ings were  had  within  a  few  years  after  the  passage  of  said  act,  that 
the  State  acquired  title  to  a  strip  of  land  running  through  said  vil- 
lage of  Binghamton  where  said  canal  was  built  and  adjacent  thereto; 
and  that  said  land,  the  title  to  which  was  thus  acquired  by  the  State, 
included  within  its  limits  all  the  land  within  the  limits  of  said  State 
street  as  afterwards  laid  out,  and  as  hereinafter  referred  to.  That 
by  chapter  391  of  the  Laws  of  1878,  the  right  to  take  possession  of 
said  canal  lands,  for  the  purpose  of  laying  out  a  street  was  given  to 
the  City  of  Binghamton  by  the  State;  and  for  the  particulars  of  said 
act  the  defendant  refers  to  the  same  together  with  the  amendments 
of  the  same  Chapter  190  of  the  Laws  of  .1880.  That  under  and  by 
virtue  of  said  acts,  the  common  council  of  the  City  of  Binghamton 
passed  a  resolution  on  the  9th  day  of  June,    1879,   accepting   the 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    6 1 

Art.  9.     Defences  Legal  and  Equitable  and  how  Pleaded. 

release  of  the  State,  a  copy  of  which  resolution  (marked  Exhibit  A.) 
is  attached  to  this  answer,  and  is  hereby  referred  to  as  forming  a 
part  of  the  same;  and  that  said  resolution  was  duly  approved  by  the 
Mayor  of  said  city. 

That  in  pursuance  of  the  laws  above  referred  to,  the  acceptance  of 
said  canal  lands  above  referred  to  and  the  powers  vested  in  the  City 
of  Binghamton  by  its  charter,  the  defendant,  before  the  commence- 
ment of  this  action,  duly  laid  out  and  recorded  said  State  street  in 
the  manner  required  by  law  to  make  the  same  one  of  the  public 
streets  of  the  City  of  Binghamton,  and  the  same  by  virtue  of  said 
proceedings  became  one  of  the  public  streets  of  the  City  of  Bing- 
hamton. 

That  said  State  street  as  recorded  comprises  all  or  a  portion  of 
the  land  described  in  the  plaintiff's  complaint,  and  that  the  defend- 
ant has  only  interfered  with  said  lands  in  the  manner  described  and 
in  no  other  way  and  only  within  the  limits  of  said  canal  lands  in  the 
manner  described  for  the  purpose  of  making  said  State  street  one  of 
the  public  streets  of  the  defendant. 

Sixth.  For  a  sixth  and  further  answer  defendant  further  alleges  all 
of  the  allegations  of  the  fifth  subdivision  of  the  answer,  to  save 
unnecessary  repetition,  the  defendant  re-alleges  and  says  further 
that  more  than  thirty  years  before  the  right  was  given  to  the  defend- 
ant to  said  canal  lands  as  a  street,  the  State  of  New  York  took  pos- 
session of  the  said  canal  lands  by  virtue  of  legal  proceedings,  claim- 
ing the  absolute  title  to  said  lands,  and  the  State  of  New  York  has 
been  in  undisputed  possession  of  said  lands  for  over  thirty  years  be- 
fore the  defendant  was  authorized  to  take  said  lands  as  aforesaid, 
claiming  the  absolute  title  to  the  same  and  thereby  the  State  of  New 
York  acquired  absolute  title  to  said  lands  by  adverse  possession  and 
the  defendant  succeeds  to  the  rights  of  the  State  as  hereinbefore 
described  and  the  possession  of  the  State  and  defendant  has  been 
continuous,  unbroken  and  adverse  for  forty  years  or  more  prior  to 
the  commencement  of  this  action. 

Wherefore  the  defendant  asks  that  the  plaintiff's  complaint  be 
dismissed  with  costs. 

A.   D.  WALES, 

Attorney  for  Defendant. 

Precedent  for  Answer  —  Plea  of  Title  by  Purchaser. 

SUPREME  COURT. 


DANIEL  E.  DONOVAN 

agst. 

JAMES  H.  VANDEMARK. 


'  78  N.  Y.  244. 


The  above  defendant,  in  answer  to  the  complaint  of  the  above 
plaintiff,  respectfully  shows  to  the  court: 

First.  He  denies  each  and  every  allegation  in  said  complaint  con- 
tained. 


62         ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 
Art.  g.     Defences  Legal  and  Equitable  and  how  Pleaded. 

Second.  As  a  second  and  further  answer  the  defendant  shows  and 
denies  that  under  the  will  of  Andries  Schoonmaker,  deceased,  the 
real  estate  described  in  the  complaint  in  this  action  became  vested 
in  George  Chambers,  or  that  by  such  will  the  said  George  Cham- 
bers acquired  any  interest  therein,  or  that  by  reason  of  such  will,  or 
the  conveyance  or  order  mentioned  in  said  complaint,  the  above 
plaintiff  became  entitled  to  the  possession  of  the  real  estate  men- 
tioned in  the  complaint  in  this  action,  or  acquired  any  right,  title  or 
interest  therein. 

Third.  As  a  third  and  further  answer,  the  defendant  shows  that 
on  or  about  the  ist  day  of  January,  1871,  this  defendant  entered 
into  an  agreement  in  writing  with  the  said  Abraham  E.  Schoon- 
maker, who  then  was,  and  up  to  the  time  of  the  sale  hereinafter  men- 
tioned continued  to  be,  the  owner  of  said  premises,  which  said  agree- 
ment gave  this  defendant  the  use  and  occupation,  and  the  right  to 
quarry  cement  on  that  portion  of  said  premises  now  in  possession  of 
this  defendant  for  the  term  of  ten  years  following  the  date  of  said 
agreement.  That  said  agreement  is  now  in  force,  and  the  defendant 
in  possession  in  pursuance  thereof,  and  that  under  such  agreement 
this  defendant  has  paid  and  expended  large  sums  of  money,  to- wit: 
The  sum  of  $10,000  in  the  improvement  of  said  property  and  in  the 
development  of  the  same,  and  rendering  the  same  useful  for  the  pur- 
poses of  this  defendant,  and  that  the  greater  part  of  such  expendi- 
ture would  be  an  entire  loss  if  this  defendant  was  ejected  from  said 
property.  That  under  such  agreement  this  defendant  has  paid,  and 
the  said  Abraham  E.  Schoonmaker  has  received,  large  sums  of 
money,  to-wit:  The  sum  of  $5,000  as  the  rents  of  said  property 
under  the  said  agreement.  That  said  agreement  was  made  and  said 
property  improved  and  developed,  and  the  said  rents  paid  to  the 
said  Schoonmaker  with  the  knowledge  and  consent  of  the  said 
Chambers,  and  without  any  objection  or  protest  on  his  part.  That 
such  improvements  were  made  and  such  money  paid  and  expended 
before  July  26,  1875. 

Fourth.  As  a  fourth  and  further  answer,  the  defendant  shows  that 
the  said  Abraham  E.  Schoonmaker,  being  the  owner  of  said  prop- 
erty as  aforesaid,  on  or  about  March  28,  1866,  in  connection  with 
his  wife,  mortgaged  said  premises  to  Catharine  Wells  and  Augustus 
Schoonmaker,  Jr.,  administratrix  and  administrator  of  James  Wells, 
deceased,  in  the  sum  of  $825,  and  said  mortgage  was  duly  recorded 
in  the  Ulster  county  clerk's  office;  that  said  mortgage  was  subse- 
quently duly  assigned  to  Frederick  Schoonmaker  by  said  mortgagees, 
which  said  assignment  was  also  duly  recorded  in  said  clerk's  office. 
That  subsequently,  default  having  been  made  in  the  payment  of 
said  mortgage,  an  action  was  commenced  in  this  court  in  favor  of 
the  executors  of  the  last  will  and  testament  of  said  Frederick 
Schoonmaker  and  against  the  said  Abraham  E.  Schoonmaker  and 
wife  and  others,  for  the  purpose  of  foreclosing  the  said  mortgage 
and  selling  the  premises  described  therein.  That  such  proceedings 
were  had  in  said  action;  that  a  judgment  of  foreclosure  and  sale  was 
entered  therein  in  the  Ulster  county  clerk's  office  on  April,  23,  1875. 
That  in  pursuance  of  such  judgment  the  said  premises  were  subse- 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    63 

Art.  10.     What  Rents  and  Profits  are  Recoverable  and  Receivership. 

quently  duly  sold  at  public  auction  at  the  court-house,  in  the  city  of 
Kingston,  and  purchased  at  such  sale  by  James  H.  Vandemark,  this 
defendant,  for  the  sum  of  $1,400;  and  this  defendant  has  received 
the  referee's  deed  on  such  sale,  which  said  deed  has  been  duly 
recorded,  and  by  virtue  of  which  said  mortgage,  action,  judgment 
and  sale,  this  defendant  became  and  now  is  the  owner  of  said 
premises. 

Wherefore  this  defendant  demands  the  judgment  of  this  court 
dismissing  said  complaint  with  costs. 

F.  L.  &  T.  B.  WESTBROOK, 

Defendant's  Attorneys. 

ARTICLE  X. 

What  Rents  and  Profits  are  Recoverable  and  Receiver- 
ship.   §§  1496,  1497,  1 531. 

Sub.  I.  What  damages  can  be  recovered. 
2.  When  receiver  appointed. 

Sub.  I.  What  Damages  Can  be  Recovered.     §§  1496,  1497,  1531. 

§  1496.  Plaintiff  may  recover  damages  vrith  the  land. 

In  an  action  to  recover  real  property,  or  the  possession  thereof,  the  plaintiff 
may  demand  in  his  complaint,  and  in  a  proper  case  recover,  damages  for  vsrith- 
holding  the  property. 

§  1497.  Rents  and  profits  to  be  included  in  damages. 

Those  damages  include  the  rents  and  profits  or  the  value  of  the  use  and  occu- 
pation of  the  property,  where  either  can  legally  be  recovered  by  the  plaintiff. 

§  1531.  Damages  recoverable;  set-off  by  defendant. 

In  an  action,  brought  as  prescribed  in  this  article,  the  plaintiff,  where  he 
recovers  judgment  for  the  property,  or  possession  of  the  property,  is  entitled  to 
recover,  as  damages,  the  rents  and  profits,  or  the  value  of  the  use  and  occupa- 
tion, of  the  real  property  recovered,  for  a  term  not  exceeding  six  years;  but  the 
damages  shall  not  include  the  value  of  the  use  of  any  improvements  made  by 
the  defendant,  or  those  under  whom  he  claims.  Where  permanent  improve- 
ments have  been  made,  in  good  faith,  by  the  defendant,  or  those  under  whom 
he  claims,  while  holding,  under  color  of  title,  adversely  to  the  plaintiff,  the 
value  thereof  must  be  allowed  to  the  defendant,  in  reduction  of  the  damages  of 
the  plaintiff,  but  not  beyond  the  amount  of  those  damages. 

As  to  the  right  to  recover  damages  for  withholding,  see  Van- 
dervoort  v.  Gould,  36  N.  Y.  639.  The  former  rule,  as  stated 
in  Lamed  V.  Hudson,  57  N.  Y.  151,  was  that  rents  and  profits  are 
not  recoverable,  unless  pleaded ;  they  were  there  stated  to  be  dis- 
tinct from  damages  for  withholding,  and  it  was  held  that  a  com- 
plaint could  not  be  so  amended  on  the  trial  as  to  include  them ; 


64    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  lo.     What  Rents  and  Profits  are  Recoverable  and  Receivership. 


this  is  changed  by  this  section.  Delisle  v.  Hunt,  36  Hun,  620. 
See  57  N.  Y.  151,  supra,  commented  on  and  rule  appHed  where 
pleading  is  proper  form.      Cagger  v.  Lansing,  64  N.  Y.  417. 

A  claim  for  damages  for  withholding  possession  of  real  estate 
does  not  include  the  rents  and  profits  thereof  during  the  time  the 
property  has  been  wrongfully  withheld ;  that  is  a  separate  and 
distinct  cause  of  action.  Lamed  v.  Hudson,  57  N.  Y.  151.  See, 
however,  Cagger  v.  Lansing,  64  N.  Y.  417;  Grout  v.  Cooper,  <) 
Hun,  326;  Van  Allen  v.  Rogers,  i  Johns.  Cas.  281.  But  under 
the  Code  of  Procedure,  an  action  to  recover  land,  for  mesne  profits, 
and  for  damages,  could  be  maintained.  Livingston  v.  Tanner,  12 
Barb.  481;  Hotchkiss  v.  Auburn,  etc.  R.  R.  Co.  36  Barb.  600; 
People,  ex  rel.,  v.  Mayor,  17  How.  56;  Vandervoort  v.  Gould,  36 
N.  Y.  639.  And  although  the  form  of  remedy  is  changed  since 
the  Revised  Statutes,  the  principles  applicable  thereunder  to  the 
recovery  of  mesne  profits  are  still  to  be  applied  to  an  action 
therefor.     Holmes  v.  Davis,  19  N.  Y.  488. 

Tenants  in  common,  who  have  recovered  in  an  action  against  a 
co-tenant,  could  unite  in  an  action  for  mesne  profits.  Longen- 
dyck  v.Burhans,  11  Johns.  461.  Rents  and  profits  cannot  be 
recovered  by  one  out  of  possession  in  an  action  to  remove  cloud 
from  title.  Bockes  v.  Lansing,  74  N.  Y.  437,  affirming  13  Hun, 
38.  Mesne  profits  are  defined  as  those  received  while  the  prop- 
erty is  withheld  from  its  rightful  occupant,  and  when  he  recovers 
possession,  the  right  to  mesne  profits  is  said  to  follow  the  recovery. 
Sedgwick  on  Damages,  vol.  i,  p.  250. 

It  is  said  that  the  damages  are  not  limited  to  the  rent.  Extra 
damages  may  be  given.  Dewey  v.  Osborn,  4  Cow.  338.  In  an 
action  by  devisees,  their  recovery  is  limited  to  the  time  when 
their  title  accrued ;  all  claims  for  rents  and  profits,  prior  to  the 
testator's  death,  go  to  the  personal  representatives.  Hotchkiss  v. 
Auburn,  etc.,  R.  R.  Co.   36  Barb.  600. 

The  measure  of  damages  is  that  which  would  apply  in  an  action 
for  use  and  occupation,  what  the  premises  were  reasonably  worth 
annually,  with  interest  added;  less  than  this  would  not  give  the 
plaintiff  indemnity.  Vandervoort  v.  Gould,  36  N.  Y.  639;  Wood- 
hnllv.  Rosenthal,  61  N.  Y.  382;  Holmes  v.  Davis,  19  N.  Y.  488; 
Low  V.  Purdy,  2  Lans.  422.  When  a  defendant  delivers  posses- 
sion, he  must  also  deliver  possession  of  the  growing  crops.  Lane 
V.  King,  8  Wend.  584;  Jackson  v.  Stone,  13  Johns.  447;  Morgan 


ACTION  TO  RECOVER  REAL  TROPERTV  (EJECTMENT).    65 

Art.  10.     What  Rents  and  Profits  are  Recoverable  and  Receivership. 

V.  Varrick,  8  Wend.  587;  Samson  v.  Rose,  65  N.  Y.  411.  As  to 
the  method  of  apportioning  mesne  profits,  see  Woodliiill  v.  Rosen- 
thal, 61  N.  Y.  382. 

In  order  that  a  defendant  may  have  the  benefit  of  the  provi- 
sions of  section  1531,  relative  to  value  of  buildings  erected  by 
him,  they  must  have  been  built  while  he  was  holding  under 
"color  of  title  adversely."     Barley  v.  Roosa,  35  St.  Rep.  898. 

The  right  to  mesne  profits  follows  a  judgment  in  ejectment  and 
defendant  cannot  dispute  it.  Benson  v.  JMatsdorf,  2  Johns.  369; 
Jackson  V.  Randall,  1 1  Johns.  405  ;  Vaii  Allen  \.  Rogers,  2  Johns. 
Cas.  281.  And  no  defence  could  be  set  up  in  a  subsequent 
action  which  would  have  been  a  bar  in  ejectment.  After  obtain- 
ing judgment  for  possession,  plaintiff  may  bring  an  action  for 
damages  done  to  the  land  while  in  possession  of  defendant. 
Pieree  v.  Tuttle,  i  T.  &  C.  139;  on  appeal  58  N.  Y.  650.  Where 
a  recovery  is  had  in  ejectment,  and  the  plaintiff  is  put  in  posses- 
sion if  the  judgment  is  subsequently  reversed  and  the  premises 
restored  to  defendant,  the  action  by  defendant  for  the  rents  and 
profits  during  plaintiff's  possession  is  in  the  nature  of  an  action  for 
use  and  occupation.  Sheldon  v.  Van  Slyke,  16  Barb.  26.  Where 
the  action  is  against  the  tenant,  and  he  gives  notice  to  his  land- 
lord, in  the  absence  of  proof  to  the  contrary,  the  landlord  will  be 
deemed  to  have  assumed  the  defence  and  is  bound  by  the  judg- 
ment, and  an  action  may  be  maintained  against  him  for  mesne 
profits  without  any  other  recovery  against  him.  Van  Alstine  v. 
McCarthy,  51  Barb.  326.  The  measure  of  damages  is  the  value 
of  the  use  and  occupation  with  interest  added.  Holmes  v.  Davis, 
19  N.  Y.  488;  Vandervoort  v.  Gould,  36  N.  Y.  639;  Low  v.  Par- 
dee, 2  Lans.  422.  It  was  said  in  Jackson  v.  Wood,  24  Wend.  443, 
that,  in  New  York  city,  interest  might  be  added  quarterly  in 
ascertaining  mesne  profits.  Mesne  profits  cannot  be  recovered  for 
more  than  six  years ;  the  statute  need  not  be  pleaded.  Grout  v. 
Cooper,  9  Hun,  326;  Jackson  v.  Wood,  24  Wend.  443;  Budd  v. 
Walker,  9  Barb.  493.  Defendant  can  only  be  held  for  mesne 
profits  for  the  period  of  his  occupation.  Byers  v.  Wheeler,  Hill 
&  Den.  Sup.  389. 

In  ejectment  by  a  tenant  for  years,  if  the  plaintiff's  title  expire 

pending  the  action,  he  is  entitled  to  recover  the  value  of  the  lease 

from  the  time  of  the  unlawful  entry  for  the  residue  of  the  term. 

Woodhull  w.  Rosenthal,  61  N.  Y.  382.      See  same  case  for  method 

[Special  Actions  —  5.] 


66         ACTION    ru  RECUVEK  REAL  PROPERTY  (EJECTMENT). 
Art.  lo.     What  Rents  and  Profits  are  Recoverable  and  Receivership. 


of  arriving  at  damages  under  peculiar  circumstances.  Where 
plaintiff  claims  mesne  profits,  it  is  too  late  on  the  trial  to  object  to 
the  form  and  particularity  with  which  his  allegations,  with  respect 
thereto,  are  made.      Candee  v.  Burke,  lo  Hun,  350. 

In  trespass  for  mesne  profits,  a  boiia  fide  purchaser  may  be 
allowed  the  value  of  improvements  made  in  good  faith.  Thomp- 
son V.  Bower,  60  Barb.  463.  The  provisions  of  the  Code,  §§  1496 
and  1 53 1,  providing  for  a  recovery  in  an  action  of  ejectment,  as 
damages  for  withholding  the  property,  the  rents  and  profits,  or 
the  value  of  the  use  and  occupation  of  the  property,  may  be 
regarded  as  the  legislative  definition  of  the  ancient  technical 
term  "mesne  profits."  The  owner  of  the  property  withheld  is 
not  confined  to  the  rents  actually  received  by  the  party  required 
to  make  restitution  ;  the  owner  should  have  either  these  or  the 
rental  value,  as  may  be  just  under  the  circumstances.  The  mesne 
profits  consist  of  the  net  rents  and  rental  value  or  value  of  the  use 
and  occupation,  and  in  ascertaining  either,  all  necessary  payments 
for  ta.xes  and  ordinary  repairs  are  to  be  deducted.  Wallace  v.  Ber- 
dell,  loi  N.  Y.  13.  Where  a  vendor  refuses  to  deliver  possession 
to  a  vendee,  it  seems  the  remedy  is  ejectment,  in  which  the  ven- 
dee may  recover  mesne  profits.  Preston  v.  Hawley,  loi  N.  Y. 
586. 

A  defendant  who  entered  in  good  faith,  and  made  permanent 
and  valuable  improvements,  may  apply  their  value  to  the  extinc- 
tion of  plaintiff's  claim  for  mesne  profits.  Bedell  v.  Shazv,  59  N. 
Y.  46.  It  seems,  one  who  has  put  improvements  upon  the  lands 
of  another,  is,  at  the  best,  only  allowed  to  thereby  mitigate  the 
damages  by  offsetting  them  to  the  extent  of  the  rents  and  profits 
claimed;  to  do  this  he  must  be  a  bona  fide  occupant;  he  cannot 
be  allowed  them  if  he  has  acted  with  knowledge  of  the  owner's 
rights.  Wood  v.  Wood,  83  N.  Y.  575.  See  Woodhull  v.  Rosen- 
thal, 61  N.  Y.  382.  Where,  during  the  pendency  of  an  action  of 
ejectment  brought  by  a  lessor  against  a  lessee  under  a  condition 
giving  a  right  to  re-enter  for  non-payment  of  rent,  the  lessee 
sub-lets  to  one  who,  with  full  knowledge  of  the  facts,  puts  in  a 
crop  which  is  harvested,  but  not  removed  at  the  time  the  lessor  is 
put  in  possession,  under  a  judgment  in  ejectment  the  crop  be- 
longs to  the  lessor.      Samson  v.  Rose,  65  N.  Y.  411. 

The  right  of  the  true  owner  of  lands  is  suspended  as  to  recovery 
of    rents  and   profits   until   he   regains    the   right   of    possession. 


ACTION  TO   RECOVER   REAL  PROPERTY  (EJECTM  KNT) 


Art.  lo.      What  Rents  and  Profits  are  Recoverable  and  Receivership. 


Bockes  V.  Lansing,  74  N.  Y.  437.  Trespass  for  mesne  profits  may 
be  maintained  by  one  tenant  against  another  as  a  necessary 
sequence  to  a  judgment  in  ejectment.  Longendyck  v.  Burlians 
II  Johns.  461.  But  only  where  there  has  been  an  ouster. 
Dresser  v.  Dresser,  40  Barb.  300.  A  claim  for  improvements 
under  section  1531  does  not  constitute  a  cause  of  action,  but  a 
counterclaim.     Pierson  v.  Safford,  30  Hun,  521. 

Where  suit  is  brought  to  recover  possession  of  real  property 
and  mesne  profits  from  one  who  has  discharged  a  paramount 
incumbrance  in  good  faith,  and  in  ignorance  of  the  existence  of 
the  facts  upon  which  the  claim  for  possession  and  mesne  profits 
is  based,  such  holder  is  entitled  to  reimbursement  for  sums  paid 
out  by  him  in  good  faith  in  order  to  protect  the  property,  and  to 
have  the  same  set  off  against  the  use  and  occupation.  Clutc  v. 
Emmerich,  26  Hun,  10 ;  citing  jWisner  v.  Bccknian,  50  N.  Y.  338. 

A  plaintiff  is  not  entitled  to  recover  mesne  profits  or  damages 
for  the  wrongful  withholding,  until  his  right  to  recover  the  premi- 
ses is  established  and  then  only  for  the  six  years  last,  preceding- 
the  trial.  Gas  Light  Co.  v.  Rome,  etc.  Railroad  Co.  24  St.  Rep. 
154;  51  Hun,  119;  5  N.  Y.  Supp.  559. 

Plaintiff  is  entitled  to  damages  up  to  the  date  of  the  recovery 
and  is  not  limited  to  the  recovery  of  damages  up  to  the  date  of 
bringing  the  action.  Danziger  v.  Boyd,  120  N.  Y.  628;  s.  c.  30 
St.  Rep.  889,  affirming  12  St.  Rep.  64.  This  is  in  accordance 
with  the  rule  in  Vandervoort  v.  Gojild,  36  N.  Y.  646.  But  where 
the  premises  are  surrendered  pending  the  litigation,  plaintiff  is 
only  entitled  to  recover  damages  up  to  the  time  of  such  surren- 
der. Gilmaii  v.  Gi/maji,  1 1 1  N.  Y.  265,  and  it  is  held  in  Danzigcr 
V.  Boyd,  on  hearing  below,  54  Supr.  365,  that  plaintiff  can  only 
recover  from  time  of  taking  title. 

Evidence  of  rental  value  is  proper  in  an  action  to  recover  real 
property.  White  v.  Wheeler,  22  St.  Rep.  854.  See,  also,  Dan- 
ziger  V.  Boyd,  54  Supr.  365, 

Where  ejectment  was  brought  against  a  railroad  company  to 
recover  land  constituting  part  of  the  public  highway  in  front  of 
plaintiff's  premises  and  pending  the  action,  the  land  was  con- 
demned by  the  railroad  corporation,  it  was  held  that  plaintiff  was 
not  entitled  to  recover  more  than  nominal  damages  for  the  with- 
holding of  the  land  from  his  possession  from  the  time  of  the  rail- 
road company's  first  use  thereof  to  the  time  of  the  award  by  the 


68         ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 
Art.  lo.      What  Rents  and  Profits  are  Recoverable  and  Receivership. 

Commissioners  of  Appraisal.     Judge  v.  N.  V.  C.  &  H.  R.  R.  Co. 
56  Hun,  60;  s.  c,  29  St.  Rep.  475. 

The  distinction  which  formerly  existed  between  damages  for 
wrongful  withholding  of  land,  recoverable  in,  and  only  in,  an 
action  of  ejectment,  and  the  mesne  profits  which  might  be  recov- 
ered in  an  action  of  ejectment  or  in  a  subsequent  action  is  abol- 
ished by  the  Code  of  Civil  Procedure.  Gas  Light  Co.  v.  Rone, 
etc.  R.  R.  Co.  51  Hun,  119;  s.  c.  5  N.  Y.  Supp.  459;  24  St.  Rep. 
154. 

Where  land  is  taken  by  eminent  domain,  by  the  State  or  by 
one  of  its  divisions  pursuant  to  its  authority  for  public  use, 
benefits  may  be  set  off  not  only  to  the  damages  to  the  remainder 
but  also  against  the  value  of  the  part  taken.  Eldridge  v.  City  of 
Binghamton,  30  St.  Rep.  1007. 

Where  a  person  built  a  house  believing  herself  to  be  the  owner 
of  the  premises,  and  made  improvements  without  reference  to  the 
other  owners,  whose  rights  she  disputed,  it  was  held  that  she  was 
not  entitled  to  the  sum  laid  out  by  her  for  permanent  improve- 
ments.    Stephenson  v.  Cotter,  25  St.  Rep.  74. 

A  defendant  is  not  entitled  to  set  off  improvements  made  after 
he  was  expressly  notified  of  plaintiff's  claim  and  while  claiming  to 
hold  exclusive  of  it.     Henderson  v.  Scott,  6  Civ.  Pro.  R.  39. 

The  party  recovering  should  have  either  the  rents  and  profits 
received,  or  the  rental  value,  as  may  be  just,  but  all  necessary 
expenses  for  taxes  and  ordinary  repairs  are  to  be  deducted.  Wal- 
lace V.  Berdell,  loi  N.  Y.  13;  s.  c.  8  Civ.  Pro.  363. 

A  party  need  not  pay  mesne  profits  as  a  condition  of  granting 
a  new  trial.     Risley  v.  Rice,  1 1  Civ.  Pro.  R.  367. 

While  under  the  former  Code  only  damages  for  withholding 
possession  were  incidental  to  a  recovery  by  plaintiff  in  the  action 
of  ejectment,  and  the  claim  of  rents  and  profits  or  for  value  of  the 
use  and  occupation  was  a  separate  and  distinct  claim  and  so 
required  to  be  separately  pleaded,  by  the  present  Code,  §§  484, 
1496  and  1497,  this  requirement  is  dispensed  with  and  the  inci- 
dental damages  plaintiff  is  entitled  to  recover  under  his  general 
demand,  includes  the  rents  and  profits  or  value  of  the  use  and 
occupation  from  the  time  of  the  commencement  of  the  action. 
Where  in  such  an  action,  the  landlord  was  made  sole  defendant 
and  answered  denying  .simply  the  allegations  in  the  complaint, 
demanding  right  to  immediate  possession  and  that  such  posses- 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMEXT).    69 

Art.  10.      What  Rents  and  Profits  are  Recoverable  and  Receivership. 

.sion  was  wrongfully  withheld  by  defendant,  it  was  held  that  it 
was  not  error  to  confine  defendant  upon  the  trial  to  the  questions 
so  presented ;  that  they  having  been  presented  upon  sufficient 
evidence  in  plaintiff's  favor,  a  judgment  was  proper  awarding 
him  possession,  and  that  under  the  general  demand  for  damages, 
plaintiff  was  properly  allowed  to  prove  and  recover  the  annual 
rental  of  the  premises  from  the  date  of  the  commencement  of  the 
action  to  the  time  of  trial.  It  seems,  however,  a  recovery  of  these 
items  as  part  of  the  damages  included  in  the  general  demand  for 
a  time  prior  to  the  commencement  of  the  action,  would  not  be 
proper.  Clasou  v.  Baldwin,  129  N.  Y.  183;  37  St.  Rep.  213; 
modifying  and  affirming  56  Hun,  326. 

Where  the  court  granted  a  motion  by  plaintiff  for  the  direction 
of  a  verdict,  which  asked  for  mesne  profits  from  the  beginning 
of  the  action  to  the  time  of  trial,  and  the  computation  was  made 
on  the  basis  of  those  dates,  it  was  held  that  an  observation  of  the 
judge  in  addressing  the  jury,  that  plaintiff  was  entitled  to  such 
profits  for  six  years  before  the  commencement  of  the  action,  was 
to  be  disregarded  and  afforded  no  ground  for  reversal.  Clason  v. 
Baldzvin,  68  Hun,  404,  52  St.  Rep.  748,  23  Supp.  50. 

Where  a  railroad  corporation  has  possession  of  land  upon  which 
its  road  was  constructed  in  the  usual  manner,  the  owner  of  such 
land  may  maintain  an  action  of  ejectment  to  recover  the  posses- 
sion of  his  land  so  appropriated,  and  in  such  action  plaintiff  will 
on  recovering  judgment  for  possession,  be  entitled  to  recover 
damages  for  withholding  the  property  and  the  rents  and  profits 
or  value  of  the  use  and  occupation  by  inserting  proper  allegations 
for  that  purpose  in  the  complaint,  and  in  such  case  an  equity 
action  for  injunctive  relief  is  not  maintainable.  Thomas  v.  Grand 
Vietv  Beach  R.  R.  Co.  76  Hun,  603. 

In  Chacc  v.  Lai/iphcrc,  51  St.  Rep.  108,  it  was  held  that  the 
court  erred  in  permitting  plaintiff  to  recover  for  withholding  the 
premises  for  a  period  of  six  years  prior  to  the  commencement  of 
the  action  and  also  from  the  time  of  the  commencement  of  the 
action  down  to  the  rendition  of  the  judgment,  making  about 
twelve  years,  holding  he  was  only  entitled  to  recover  for  the 
period  of  six  years;  he  would,  however,  be  entitled  to  interest 
upon  such  damages  from  the  time  of  the  commencement  of  the 
action,  citing  Gas  Light  Co.  v.  Rome,  Watertown  and  Ogdens- 
burgh  R.  R.  Co.  51  Hun,  119,  24  St.  Rep.  154. 


70         ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 
Art.  II.     Right  to  Recover  against  Occupants  Separately. 


Where  in  an  action  of  ejectment,  the  plaintiff  recovers  but  fails 
to  prove  any  damages  resulting  from  an  unlawful  withholding  of 
the  land,  he  should  be  awarded  nominal  damages  only.  Sackett 
V.  Thomas,  4  App.  Div.  447. 

Sub.  2.   When  RECf:iVER  Appointed. 

The  court  will  not,  pending  an  action  of  ejectment  at  the 
instance  of  the  plaintiff,  appoint  a  receiver  of  the  rents  of  the 
premises  in  suit  unless  equities  appear.  People  v.  Mayor,  10  Abb. 
Ill  ;  Thompson  v.  Sherrard,  35  Barb.  593;  Guernsey \.  Powers,  9 
Hun,  78;  Bur  dell  v.  Bur  dell,  54  How.  91  ;  Corey  v.  Long,  12  Abb. 
(N.  S.)  427.  See,  however,  Sheridan  v.  Jackson,  5  Week.  Dig. 
443;  Ireland  \ .  Nichols,  37  How.  222.  In  Rogers  v.  Marshall,  6 
Abb.  (N.  S.)  457,  a  receiver  was  appointed  in  an  action  to  set 
aside  a  conveyance  where  it  was  shown  defendants  were  irrespon- 
sible, and  were  collecting  rents,  and  the  premises  were  deteriorat- 
ing in  value  owing  to  the  neglect  of  defendants,  citing  People  v. 
Mayor,  10  Abb.  1 1 1,  supra,  as  an  authority  in  point. 

The  appointment  of  a  receiver  of  rents  and  profits  pending  the 
litigation,  is  improper  in  an  action  of  ejectment  brought  against 
one  in  posses.sion  under  a  contract  of  sale.  Such  remedy  is  in- 
consistent with  the  nature  of  the  action  and  the  relief  sought. 
LaBau  v.  Huetzvohl,  39  St.  Rep.  855  ;  following  Thompson  v. 
Sherrard,  35  Barb.  593;  citing  Guernsey  v.  Powers,  9  Hun,  78; 
Bur  dell  V.  Burdell,  54  How.  91. 

Where  defendant  in  ejectment  in  order  to  avoid  the  appoint- 
ment of  receiver  gave  an  undertaking  to  secure  the  rents,  and  on 
the  trial  the  defendant  succeeded,  but  judgment  was  reversed  and 
plaintiff  finally  had  judgment  for  possession  and  the  rental  value, 
it  was  held  that  the  undertaking  was  not  merged  in  or  superseded 
by  the  first  judgment  but  remained  operative  and  could  be  en- 
forced.     Clutc  v.  Knies,  102  N.  Y.  2,77- 

ARTICLE  XI. 

Right    to    Recover    Against    Occupants    Separately. 

§^  1516-1518. 

^  1516.   Rule  when  there  are  distinct  occupants. 

Where  there  are  two  or  more  defendants,  and  it  is  alleged,  in  the  answer  of 
either  of  them,  that  he  occupies  in  severalty,  or  that  he  and  one  or  more  of  his 
co-defendants  occupy  jointly,  one  or  more  distinct  parcels,  and  that  one  or  more 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         /I 
Art.  II.     Right  to  Recover  against  Occupants  Separately. 


other  defendants  possess  other  parcels,  in  severalty  or  jointly,  the  court  may,  in 
its  discretion,  upon  the  application  of  the  plaintiff,  and  upon  such  terms  as 
justice  requires,  direct  that  the  action  be  divided  into  as  many  actions  as  are 
necessary.  If  the  action  is  not  so  divided,  and  it  appears  upon  the  trial,  that 
the  allegation  is  true,  the  plaintiff  must  before  the  evidence  is  closed,  elect 
against  which  defendant  or  defendants  he  will  proceed;  and  a  judgment  dis- 
missing the  complaint  must  thereupon  be  rendered,  in  favor  of  the  other 
defendants. 

^  1517.  The  last  section  qualified. 

The  last  section  does  not  apply  to  a  case,  where  two  or  more  defendants 
occupy  different  apartments  in  a  building.  In  such  a  case,  in  an  action  to  re- 
cover the  building  and  its  curtilage,  the  plaintiff  is  entitled  to  judgment  jointly 
against  all  the  defendants  who  are  liable  to  him. 

55  1518.  When  plaintiff  may  recover  against  one  defendant  subject  to  rights 
of  others. 

Section  1516  of  this  act  does  not  apply  to  a  case,  where  one  or  more  defend- 
ants, answering  as  therein  prescribed,  hold  under  another  defendant,  and  the 
plaintiff  elects  to  proceed  against  the  latter,  subject  to  the  rights  and  interests 
of  the  former.  In  such  a  case,  the  proceedings  against  the  defendant  so 
answering  must  be  stayed  until  final  judgment;  and  if  the  plaintiff  recovers 
final  judgment  against  the  defendant,  under  whom  they  hold,  the  judgment 
operates  as  a  transfer  to  the  plaintiff  of  that  defendant's  right,  title,  and  inter- 
est, and  the  costs  of  the  defendant  or  defendants  so  answering  are  in  the  discre- 
tion of  the  court. 

Section  15 17  is  said  by  the  codifiers  to  be  new,  but  in  accord- 
ance with  Peai'ce  v.  Golden,  8  Barb.  522,  affirmed,  JZ/(5'.  nom.  Pearce 
V.  Ferris,  10  N.  Y.  280. 

Where  conveyances  were  of  separate  parcels  to  different  per- 
sons it  was  held  that  plaintiff  could  not  bring  a  joint  action 
against  his  grantees,  and  the  purchaser  from  one  of  them.  Voor- 
hisv.  VoorJiis,  24  Barb.   150. 

Under  the  Revised  Statutes,  where  in  an  action  against  four 
defendants  to  recover  possession  of  land,  the  complaint  stated 
that  one  of  them  originally  claimed  title  to  the  premises  and 
the  others  were  in  possession  under  him,  and  that  the  de- 
fendants unjustly  withheld  the  po.ssession  from  the  plaintiff,  the 
answer  merely  denied  the  allegation  of  the  complaint,  as  to 
withholding  possession,  and  alleged  that  the  one  was  the  owner 
of  and  entitled  to  possession  of  the  premises;  on  the  trial  it  was 
proved  by  the  defendants,  subject  to  objection,  that  they  occu- 
pied severally  distinct  parcels  of  the  premises.  Held,  that,  under 
the  pleadings,  the  plaintiff  was  entitled  to  recover  against  all  the 
defendants.       Fosgat ex.  Herkimer,  etc.  Co.  12  N.  \'.  580.      It  was 


72    AC  riON  TO   RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  12.     When  Action  will  be  Severed. 

held  in  Dillayc  v.  U^ilson,  43  Barb.  261,  that  the  fact  that  defend- 
ant.s  occupied  distinct  portions  in  severalty  was  matter  of  defence 
and  must  be  set  up  by  way  of  an  answer. 


ARTICLE  XII. 
When  Action  wtij.  i5E  Severed.     §§  1521,  1522,  1523. 

§  1521.  Abatement  of  action. 

The  provisions  of  title  fourth  of  chapter  eighth  of  this  act,  as  applied  to  an 
action  specified  in  this  article,  are  subject  to  the  qualification  that  the  court  may. 
in  its  discretion,  proceed  as  prescribed  either  in  that  title  or  in  the  next  two 
sections. 

g  1522.  Action  to  be  divided,  when  different  persons  succeed  to  different 
parcels. 

Where,  upon  the  death  of  a  party,  different  persons  succeed  to  the  decedent's 
title  to,  or  interest  in,  different  distinct  parcels  of  the  property  sought  to  be  re- 
covered, the  court  may,  upon  motion,  and  upon  such  terms  as  justice  requires, 
direct  that  the  action  be  divided  into  as  many  actions  as  are  necessary;  and  that 
the  successor  to  the  title  or  interest  of  the  decedent,  to  or  in  each  distinct  parcel, 
be  substituted  as  plaintiff  or  defendant,  as  the  case  requires,  in  an  action  relat- 
ing thereto. 

§  1523,  Id.;  when  different  persons  succeed  to  real  property  and  to  rents 
and  profits. 

Where  the  .plaintiff  seeks  to  recover  damages  for  withholding  the  property, 
and,  upon  the  death  of  a  party,  different  persons  succeed  to  the  decedent's  right 
or  liability  for  those  damages,  and  to  his  title  to  or  interest  in  the  property,  the 
court  may,  upon  motion  made  upon  notice  to  the  persons  to  be  affected,  and 
upon  such  terms  as  justice  requires,  direct  the  action  to  be  divided  into  two 
actions,  one  to  recover  the  possession  of  the  property,  with  the  rents  and  profits 
thereof  accruing  after  the  decedent's  death,  the  other  to  recover  the  damages 
accruing  before  his  death;  and  that  the  successor  in  interest  of  the  decedent, 
with  respect  to  the  cause  of  action  in  each  action,  be  substituted  as  plaintiff  or 
defendant  therein,  as  the  case  requires. 

Where  plaintiff  dies  and  his  heir  applies  for  leave  to  continue 
the  action,  it  is  not  necessarj-  that  the  widow  should  join  in  the 
petition  or  be  made  a  party.  Ash  v.  Cook,  3  Abb.  389.  As  to 
renewal  and  continuintj  of  action  of  ejectment  after  verdict,  where 
some  of  the  grantors  in  whose  name  it  is  brought,  have  died,  see 
Doherty  v.  Matse/l,  9  Civ.  Pro.  R.  103.  The  parties  seeking  to 
continue  the  action  must  show  that  they  have  succeeded  to  such 
title  as  the  plaintiff  had.  St.  John  v.  Crool,  10  How.  253. 
Where  one  from  whom  land  has  been  wrongfully  taken,  died  with- 
out recovering  possession,  it  was  held  that  all  damage  done  to  the 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         73 

Art.  13.     Evidence. 

estate,  and  for  the  rents  and  profits  down  to  the  time  of  his  death, 
went  to  his  executor  and  belonged  to  his  personal  estate.  HotcJi- 
kiss  V.  Auburn,  etc.  R.  R.  Co.  36  Barb.  600. 

In  ejectment  on  behalf  of  sevend  plaintiffs,  if,  after  judgment, 
one  of  the  plaintifTs  dies,  execution  may  issue  in  the  names  of 
all  the  plaintiffs.      Hoivellv.  Eldredgc,  21  Wend.  678. 

The  death  of  the  defendant  in  ejectment  after  verdict  does  not 
abate  the  action.  Judgment  may  be  entered  as  of  the  date  of  the 
recovery  of  the  verdict.  Diefcndorf  v.  House,  9  How.  243. 
When  a  grantee  in  land  in  the  adverse  possession  of  another 
brings  ejectment  in  the  name  of  his  grantor  and  dies,  the  action 
may  be  continued  in  the  name  of  his  devisee.  Ward  v.  Reynolds, 
62  How.  183. 

In  Moseley  v.  Moseley,  11  Abb.  105;  Putnam  v.  Van  Buren,  7 
How.  31 ;  Kissam  v.  Hamilton,  20  How.  369,  under  the  Code  of 
Procedure  it  was  held  that  the  death  of  a  sole  defendant  abated 
the  action.  As  to  right  of  action  against  a  party  acquiring  a 
defendant's  title  pending  the  litigation,  see  Moseley  v.  Albany 
Northern  R.  R.  Co.  14  How.  71.  As  to  what  is  necessary  to  be 
shown  on  application  to  revive  action,  see  Boynton  v.  Hoyt,  i 
Den.  53. 

An  action  in  ejectm.ent  having  been  brought  by  plaintiff  and 
his  sister  as  tenants  in  common,  the  sister  died  leaving  by  will  all 
her  property  to  her  husband  and  the  will  was  contested ;  held 
that  a  severance  of  the  action  of  ejectment  was  proper.  Read  v. 
Simon,  46  St.  Rep.  729,  22  Civ.  Pro.  196,  19  Supp.  457. 

The  provision  for  the  severance  of  an  action  of  ejectment  is  for 
plaintiff's  benefit  and  is  to  be  made  by  plaintiff  and  is  not  avail- 
able to  defendant.  Henncssy  v.  Paulsen,  12  Misc.  384,  d'j  St. 
Rep.  343,  33  Supp.  638,  147  N.  Y.  255 

ARTICLE  XIII. 
Evidence. 

Sub.  r.  When  ouster  to  be  proved.     §  1515. 

2.  Wh.\t  evidence  is  necessary  and  troper  in  ejectment. 

•     Sub.  X.   When    Ouster    to    be    Proved. 

§  1515.  When  ouster  to  be  proved. 

Where  the  action  is  broug;ht  by  a  tenant  in  common,  or  a  joint  tenant,  against 
his  co-tenant,  the  plaintiff,  besides  proving  his  right,  must  also  prove  that  the 


74         ACTION  TO  RFXOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  13.     Evidence. 


defendant  actually  ousted  him,   or  did  some  other  act,   amouniintc  to  a  total 
denial  of  his  right. 

To  establish  an  adverse  possession   by  one  tenant   in  common 
such  as  will  effect  the  ouster  of  his  co-tenant,  notice  in  fact  to  the 
latter,  of  the  adverse  claim,  is  required,  or  unequivocal  acts,  open 
and  public,   making  the  possession  so  visible,  hostile,   exclu.sive 
and  notorious  that  notice  may  fairly  be  presumed.     The  giving 
and  receiving  a  deed  of  a  part  of  the  premises  by  a  co-tenant  is 
not  in  itself  an  act  so  hostile  to  the  rights  of  the  co-tenants  as  to 
make   an   adverse   possession.     Edwards  v.  Bishop,  4   N.   Y.  61  ; 
Culver  V.  Rhodes,  87  N.  Y.  348.     The  general  rule  is  that  the  pos- 
session of  one  tenant  in  common  is  the  possession  of  his  co-ten- 
ant;  Humbert  v.   Trinity  Church,  24  Wend.  587;  and  one  tenant 
in  common  is  justified  in  taking  po.ssession  of  the  common  prop- 
erty even  though  by  stealth,  if  accomplished  without  breach  of 
the  peace.      Wood  v.  Phillips,  43   N,  Y.  152.     And  it  is  held  that 
one  co-tenant  acts  as  agent  for  all  the  others.      Ward  v.  Warren, 
82  N.  Y.  265.     The  possession  of  one  tenant   in   common   never 
bars  that  of  his  co-tenants  since  possession  by  a  tenant  in  common 
and  not  adversely  is  in  support  of  the  common  title.     Kathan  v. 
Rockwell,  16  Hun,  90;  Jackson  v.    Tibbitts,  9  Cow.  241.     The  de- 
fendant must  show  himself  a  tenant  in  common  before  plaintiff  is 
put  to  proof  of  ouster.     Gillett  v.  Stanley,  i  Hill,  121  ;  Sharpy. 
Ingraham,^.  Hill,  116.     It  is  said  that  a  co-tenant  or  one  claiming 
under  him  is  the   only   party   entitled   to   insist   on   such   proof. 
Arnot  V.  Beadle,  Hill  &  Denio's  Sup.  181. 

The  denial  of  plaintiff's  right  must  be  such  as  to  amount  to  a 
disseizin  of  the  co-tenant  or  as  will  establish  an  adverse  posses- 
sion. Siglar  V.  fTrw  Riper,  10  Wend.  414;  Edmunds  v.  Bishop, 
4  N.  Y.  61  ;  Sparks  v.  Leavy,  19  Abb.  364. 

An  entry  on  the  land  claiming  the  entire  property,  denial  of 
possession  to  co-tenant,  sale  of  farm  to  a  stranger  and  appropria- 
tion of  proceeds,  is  an  ouster.      Clapp\.  Bromagham,  9  Cow.  530. 

See,  also,  Jackson  v.  Smith,  13  Johns.  406,  and  both  cases  com- 
mented upon.  Culver  v.  Rhodes,  87  N.  Y.  352,  which  holds  that 
to  effect  the  ouster  of  a  co-tenant  there  must  be  "an  actual, 
visible,  continued,  notorious,  distinct  and  hostile  possession,"  and 
reviews  the  authorities  on  the  point. 

Actual  and  exclusive  possession  of  the  property  claiming  the 
Avhole,  taking  title  from  a  hostile  source  as  against  a  co-tenant, 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         y$ 

Art.  13.     Evidence. 

exclusive  claim  of  title  while  in  possession,  exclusion  of  co-ten- 
ants, each  constitutes  an  ouster.  Florence  v.  Hopkins,  46  N.  Y. 
182;  Clark  V.  Crego,  47  Barb.  617;  Phelan  v.  Kelly,  25  Wend. 
395;  Grim  v.  Dyar,  3  Duer,  354;  Smith  v.  Burt  is,  9  Johns.  174; 
Jackson  V.  Brink,  5  Cow.  483 ;  Trustees  of  Church  v.  Johnson,  66 
Barb.  119;  Valentine  v.  Northrup,  12  Wend.  494;  Henderson  v. 
Scott,  25  Hun,  303;  Miller  v.  Piatt,  5  Duer,  272;  Jackson  v.  7>'^- 
^zV/i',  9  Cow.  241  ;  Humbert  v.  Trinity  Church,  24  Wend.  587. 
A  conveyance  of  the  whole  property,  made  by  one  or  two  co-ten- 
ants, to  a  grantee  who  claims  to  own  the  whole  is  an  ouster. 
Henderson  v.  Scott,  6  Civ.  Pro.  R.  39. 

In  Preston  v.  Smallwood,  48  St.  Rep.  199,  it  was  held  that  the 
facts  did  not  justify  finding  of  an  ouster 

Sub.  2.  What  Evidence  is  Necessary  and  Proper  in  Ejectment. 

One  bringing  ejectment  must  show  clearly  that  the  lands  in 
suit  are  included  in  the  description.  Finelite  v.  Sinnot,  5  N.  Y. 
Supp.  439. 

Plaintiff  must  show  that  he  or  his  ancestor's  predecessor  or 
grantor  was  seized  or  possessed  of  the  premises  within  twenty 
years  before  the  commencement  of  the  action,  but  where  the  legal 
title  is  upheld  possession  is  presumed.  DoJierty  v.  Matsell,  16 
St.  Rep.  593. 

As  to  what  evidence  was  held  sufficient  in  peculiar  cases,  see 
Gallagher  v.  McKnight,  32  St.  Rep.  1098;  McRoberts  v.  Berg- 
man, 32  St.  Rep.  II II. 

Proof  of  occasional  resort  to  the  lands  in  question  in  the 
cutting  of  salt  meadow  grass  is  not  sufficient  to  establish  occu- 
pancy or  possession  in  the  absence  of  the  deed  describing  and 
including  the  premises.  Roberts  v.  Baumgarten,  no  N.  Y.  380; 
s.  c.  18  St.  Rep.  162. 

A  receipt  briefly  describing  the  land,  signed  by  the  mark  of  an 
alleged  grantor  without  witness,  is  not  proof  that  the  person 
claiming  was  ever  in  possession  of  the  deed.  Abel  v.  Brewster, 
34  St.  Rep.  402. 

Statements  in  a  purchase  money  mortgage  as  to  the  dimensions 
of  the  land  conveyed  to  the  mortgagor  are  not  admissible  in  an 
action  of  ejectment  against  one  who  was  a  stranger  to  the  trans- 
action,    Burke  V.  Jackson,  ^2  St.  Rep.  364. 


76  ACTION  TO  RECOVER  REAL  PROI'ERTV  (EJECTMEiNT). 

Art.  13.     Evidence. 

Evidence  of  improvements  made  to  the  property  after  notice 
was  given  by  plaintiff  to  the  defendant  of  the  claim  of  ownership, 
was  held  to  be  properly  excluded.  Henderson  v.  Scott,  6  Civ. 
Pro.  R.  39. 

In  an  action  of  ejectment  wherein  plaintiff  claimed  as  the  son 
and  heir-at-law  of  one  who  died  seized  of  the  premises,  the  ques- 
tion at  issue  was,  as  to  whether  the  mother  of  the  plaintiff  was, 
previous  to  his  birth,  married  to  the  owner  of  the  premises.  The 
mother  was  called  as  a  witness  for  plaintiff  to  prove  the  marriage, 
but  her  testimony  was  excluded  as  incompetent  under  section  829 
of  the  Code.  Held,  error  that  the  mother  was  not  a  person  from, 
through  or  under  whom  plaintiff  derived  any  title  or  interest,  nor 
was  she  interested  in  the  event  of  the  action  within  the  meaning 
of  the  Code.  That  a  judgment  in  favor  of  the  plaintiff  would  not 
be  competent  evidence  either  by  way  of  admission  or  on  the 
ground  of  estoppel  in  favor  of  the  mother  in  an  action  brought  by 
her  to  recover  dower  in  the  premises.  A  judgment  in  favor  of  the 
father  of  the  mother  of  the  plaintiff  in  an  action  brought  against 
the  father  of  plaintiff  was  received  under  objection  and  this  was 
held  to  be  error.  Plaintiff  offered  to  prove  declarations  of  the 
alleged  father  made  long  subsequent  to  the  time  when  the  alleged 
marriage  ceremony  with  the  mother  took  place.  The  evidence 
was  excluded  below.  On  appeal  it  was  held  to  be  competent 
because  it  was  a  question  of  pedigree.  Eisenlord  v.  Clum,  126 
N.  Y.  552. 

Where  the  General  Term  has  construed  a  deed  in  favor  of 
plaintiff,  the  declarations  of  the  grantor  before  the  execution  of 
the  deed  to  defendant,  tending  to  establish  a  boundary  other 
than  that  made  by  the  deed,  as  so  construed,  are  inadmissible 
upon  a  new  trial.     Harris  v.  Oakley,  26  St.  Rep.  824. 

Declarations  of  a  grantor  made  subsequent  to  the  grant, 
although  he  was  then  in  possession,  are  not  admissible  in  an 
action  of  ejectment  brought  by  his  grantee  to  characterize  such 
possession  or  show  that  the  conveyance  was  not  intended  to  be 
absolute.  Williams  v.  Williams,  142  N.  Y.  156,  58  St.  Rep.  625. 
It  is  essential  that  the  deeds  introduced  to  show  plaintiff's 
chain  of  title  should  contain  such  a  description  of  the  premises 
granted  as  to  enable  the  court  and  jury  to  determine  that  it 
includes  the  premises  in  question.  Jarvis  v.  Lynch^gi  Hun,  349, 
36  N.  Y.  Supp.  220,  70  St.  Rep.  794. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).  -J-J 

Art.  13.     Evidence. 

The  distances  named  in  a  description  in  a  deed  will  not  neces- 
sarily control.  Race  v.  Steivart,  5  App.  Div.  598,  citing  Robinson 
V.  Kivic,  70  N.  Y.  147. 

Where  plaintiff  shows  a  chain  of  title  from  a  source  acknowl- 
edged to  be  valid,  he  need  not  show  possession  in  each  of  the 
intermediate  grantees  Proof  of  possession  of  two  of  them  is 
sufficient,  and  where  the  answer  admits  possession  by  defendant 
it  is  only  necessary  for  plaintiff  to  establish  his  right  to  posses- 
sion Arents  v.  Long  Island  R.  R.  Co.  89  Hun,  126,  34  Supp. 
1085,  69  St.  Rep.  I. 

Where  an  answer  alleges  that  the  land  had  been  in  possession 
of  defendant  for  forty  years  and  used  as  a  public  square,  evidence 
of  acts  of  ownership  by  the  village  trustees  prior  to  the  date  of 
plaintiff's  deed,  is  admissible.  Mangavi  \ .  President  of  Sing  Sing, 
86  Hun,  604,  33  Supp.  843,  67  St.  Rep.  454. 

Where  the  purchaser  was  put  in  possession  under  a  contract  of 
sale,  neither  a  map  bearing  his  name  as  owner,  nor  an  agreement 
between  him  and  other  parties  as  to  a  right  of  way,  nor  a  deed  by 
his  vendor  of  adjoining  property  described  as  bounded  by  his 
land,  is  evidence  of  payment  of  the  purchase  price  or  delivery  of 
the  deed  in  an  action  of  ejectment  brought  after  the  lapse  of 
thirty  years  by  the  vendor's  heirs.  Griszvold  v.  Little,  13  Misc. 
281,  34  Supp.  703,  68  St.  Rep.  728. 

Monuments  of  early  surveys  in  the  forest  when  found  and  iden- 
tified are  entitled  to  greater  weight  in  determining  boundaries 
than  the  courses  and  distances  given  by  such  surveys.  Declara- 
tions of  the  occupants  of  land,  made  while  pointing  out  a 
boundary  line,  are  admissible  in  an  action  of  ejectment,  as  the 
only  effect  of  such  evidence  is  to  show  the  extent  of  their  posses- 
sion. Skinner  v.  Odenbach,  85  Hun,  599,  33  Supp.  282,  (yj  St. 
Rep.  102. 

Anything  tending  to  disprove  plaintiff's  allegations  of  seizin 
and  right  of  possession,  is  admissible  under  a  general  denial. 
Hughes  v.  Hughes,  10  Misc.  180,  62  St.  Rep.  488,  30  Supp.  937. 

A  grant  by  the  State,  evidenced  by  a  patent  duly  issued  cannot 
be  impeached  collaterally  upon  the  trial  of  an  action  of  eject- 
ment.    DeLancey  v.  Piepgras,  138  N.  Y.  26,  51  St.  Rep.  680. 

Plaintiff  is  not  obliged  to  trace  his  title  back  of  a  common 
grantor.     Zahmv.  Dopp,  46  St.  Rep.  920,  19  Supp.  863. 

The  production  of  the  deed  with  proof  of  possession  under  it  or 


78         ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  14.     Verdict. 

possession  in  the  grantor  is  not  sufficient  evidence  of  title  to  put 
defendant  on  his  defence.  Bates  v.  Lidgerwood  Mfg.  Co.  20  St. 
Rep.  778. 

But  where  plaintiff  establishes  title  by  proper  and  sufficient 
conveyance  and  possession  prior  to  the  entry  by  defendant,  and 
that  entry  is  not  attempted  to  be  justified  by  any  claim  of  right, 
the  burden  of  -tablishing  a  better  title  than  plaintiff's  is  cast 
upon  defendant.  Dunham  v.  Towjishcnd,  118  N.  Y.  281,  affirm- 
ing 43  Hun,  580, 

In  an  action  of  ejectment,  a  judgment-roll  in  an  action  of  tres- 
pass for  damages  to  personal  property  on  the  premises,  brought 
against  defendant's  grantor  after  defendant  had  received  his  deed 
and  taken  possession,  is  inadmissible.  Bennett  v.  Gray,  92  Hun, 
86,  36  N.  Y.  Supp.  372,  71  St.  Rep.  142. 

As  to  right  of  either  party  to  a  survey  of  lands  in  possession  of 
the  other  to  prepare  for  trial,  see  §§  1682, 1683  and  1684  of-the  Code. 

Plaintiffs  are  not  estopped  from  the  assertion  of  their  legal  rights 
by  expenditures  made  by  defendant  on  adjoining  premises  of 
which  the  plaintiffs  had  no  knowledge.  Goiivcrnciir  v.  National 
Ice  Co.  33  St.  Rep.  i. 

Where  plaintiff  proved  title  back  to  the  crown,  and  cutting  of 
grass  from  meadows  and  fishing  on  the  beach,  Jield  to  show  a 
clear  title.     McRoberts  v.  Bergman,  32  St.  Rep.   1 1 1 1 

No  presumption  of  a  grant  arises  from  the  mere  fact  that  a 
person  occasionally  gave  permission  to  cut  grass  upon  unfenced 
and  uncultivated  land.  Recitals  in  street  opening  proceedings  as 
to  ownership  of  property  are  no  evidence  of  title  in  the  persons 
named.  Jarvis  v.  Lyjich,g\  Hun,  349,  36  N.  Y.  Supp.  220,  70  St. 
Rep.  794. 

ARTICLE  XIV 

Verdict.    §§  15 19,  1520. 

^  1519.  Verdict,  etc.,  to  state  nature  of  plaintiflPs  estate. 

A  verdict,  report,  or  decision,  in  favor  of  the  plaintiff,  in  an  action  specified  in 
this  article,  must  specify  the  estate  of  the  plaintiff  in  the  property  recovered, 
whether  it  is  in  fee,  or  for  life,  or  for  a  term  of  years,  stating  for  whose  life  it  is, 
or  specifying  the  duration  of  the  term,  if  the  estate  is  less  than  a  fee. 

§  1520.  Expiration  of  pljuntiflPs  title  before  trial. 

If  the  right  or  title  of  the  plaintiff,  in  an  action  specified  in  this  article,  expires 
after  the  commencement  of  the  action,  but  before   the  trial,  and  he  would  have 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).  79 

Art.  14.     Verdict. 

been  entitled  to  recover,  but  for  the  expiration,  the  verdict,  report,  or  decision 
must  be  rendered  according  to  the  fact;  and  the  plaintiff  is  entitled  to  judgment 
for  his  damages  for  the  withholding  of  the  property,  to  the  time  when  his  right 
or  title  so  expired. 

Where  plaintiff  proves  title  to  a  smaller  quantity  of  land  than 
he  has  claimed  in  his  complaint  he  may  recover  according  to  his 
proof,  and  the  complaint  may  be  amended  accordingly.  Kellogg 
V.  Kellogg,  6  Barb.  116.  A  variance  between  the  description  of 
the  premises  claimed  in  the  complaint,  and  that  shown  on  the 
trial,  is  not  a  failure  of  proof  for  which  a  non-suit  should  be 
granted.  Russell  v.  Conn,  20  N.  Y.  81.  If  the  premises  are  sub- 
ject to  an  easement  in  favor  of  one  not  a  party,  judgment  may 
award  possession  subject  to  the  easement.  Strong  v.  City  of 
Brooklyn,  68  N.  Y.  i  ;  Reformed  CJiurch  v.  Sehooleraft,  65  N.  Y.  34. 

Such  a  judgment  will  not  be  ordered  unless  it  appears  that  the 
defendant  has  been  guilty  of  some  unauthorized  interference  with 
plaintiff's  rights.      DeVVitt  w.  Village  of  It haea,  15    Hun,  568. 

If  the  plaintiff  claimed  in  the  complaint  title  to  a  whole  lot  and 
only  proves  title  to  an  undivided  part,  he  is  entitled  to  a  verdict 
in  accordance  with  the  proof,  and  if  he  proves  title  to  any  part 
claimed  he  is  entitled  to  a  verdict  for  the  part  to  which  he  proves 
title,  as  a  matter  of  right,  and  if  such  part  be  described  in  the  ver- 
dict it  is  unnecessary  to  amend  the  pleadings  to  make  them  con- 
form to  the  proof.  Vrooman  v.  Weed,  2  Barb.  330.  To  same 
effect  Harrison  v.  Stevens,  12  Wend.  170;  Van  Alstyne  v.  Spraker, 
13  Wend.  578;  Bear  v.  Snyder,  11  Wend.  592;  Max  v.  Thome,  2 
Barb.  1 56 ;  Van  Rensselaer  v.  Jones,  2  Barb.  642 ;  Neilson  v. 
Neilson,  5  Barb.  565.  Contra,  Holmes  v.  Seely,  17  Wend.  75; 
Gillett  V.  Stanley,  i  Hill,  121  ;  Cole  v.  Irvine,  6  Hill,  634. 

In  Smith  v.  Long,  3  Civ.  Pro.  R.  396,  it  is  held  that  under  a 
claim  for  an  entire  piece  of  ground  the  plaintiff  cannot,  without  an 
amendment,  have  judgment  for  an  undivided  part  of  it,  but 
such  amendment  may  be  allowed  on  appeal. 

But  where  a  complaint  described  twenty-five  acres  in  a  single 
parcel,  the  court'properly  allowed  an  amendment  to  the  complaint 
and  recovery  for  eleven  acres  thereof.  Barley  v.  Roosa,  35  St. 
Rep.  898,  overruling  Holmes  v.  Seely,  17  Wend.  75,  and  following 
Vrooman  v.  Weed,  2  Barb.  330.  Citing  Van  Rensselaer  v.  Jones, 
2  Barb.  643;    Tricax  v.  Thome,  2  Barb.  156,  Code,  §  151 1. 

See  as  to  power  to  permit  amendment,  Hinman  v.  Booth,  21 
Wend.  267;  Ryerss  v.  Wheeler,  22  Wend.   148. 


80         ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 
Art.  15.     New  Trial  and  its  Effect  and  Evidence  Thereon. 

The  judgment  should  specify  the  duration  of  the  term  —  Olcn- 
dorfv.  Cook,  I  Lans.  45  —  and  the  nature  and  extent  of  plaintiff's 
interest  where  it  is  the  fee  subject  to  an  easement.  Rogers  v. 
Sinshcimcr,  50  N.  Y.  646. 

In  case  of  expiration  of  plaintiff's  title  before  verdict,  the  court 
may  render  judgment  for  the  damages  for  withholding  the  premi- 
ses without  judgment,  for  the  possession.  Lang  v.  Wilbraham,  2 
Duer,  171.  Where,  after  the  trial  and  before  decision  of  the 
appeal,  the  right  and  title  of  the  plaintiffs  expire,  the  court  merely 
afifirms  the  judgment,  but  no  execution  for  the  possession  is 
awarded.  Olendorf  v.  Cook,  i  Lans.  37.  No  supplemental 
answer  is  necessary  to  give  a  defendant  the  benefit  of  this  provi- 
sion. Langv.  WilbraJiaui,  2  Duer,  171,  S2ipra.  The  provision 
does  not  apply  to  ejectment  for  non-payment  of  rent  where  the 
plaintiff  assigns  his  interest  after  suit  brought.  Van  Rensselaer  v. 
Oiven,  48  Barb.  61. 

A  verdict  in  favor  of  the  plaintiff  in  the  action  of  ejectment 
should  exactly  define  what  land  he  is  entitled  to.  De  Clemente  v. 
Winstanlcy,  8  Misc.  45,  59  St.  Rep.  455,  28  Supp.  513. 

A  judgment  in  favor  of  plaintiff  in  an  action  to  recover  real 
property  or  the  possession  thereof,  must  determine  the  duration 
of  the  term  for  which  he  can  hold  the  premises.  Where  in  an 
action  brought  to  recover  possession  of  real  property  by  plaintiff 
as  tenant  of  defendant,  his  right  thereto  expires  after  the  com- 
mencement of  the  action,  he  is  not  entitled  to  a  judgment  for  the 
possession  of  the  premises  or  to  the  verdict  and  judgment  pro- 
vided for  by  section  1520  of  the  Code.  Lever  v.  Foote,  82  Hun, 
393,  63  St.  Rep.  840,  31  Supp.  356. 

ARTICLE  XV. 

New  Trial  and  its  Effect  and  Evidence  Thereon. 

§§  1 525'  1526,  1527,  1528,  1530. 

§  1525.  New  trial  may  be  granted. 

The  court,  at  any  time  within  three  years  after  such  a  judgment  is  rendered, 
and  the  judgment-roll  is  filed,  upon  the  application  of  the  party  against  whom 
it  was  rendered,  his  heir,  devisee,  or  assignee,  and  upon  payment  of  all  costs, 
and  all  damages,  other  than  for  rents  and  profits  or  for  use  and  occupation, 
awarded  thereby  to  the  adverse  party,  must  make  an  order  vacating  the  judg- 
ment, and  granting  a  new  trial  in  the  action.  The  court  upon  a  like  application 
made  within  two  years  after  the  second  final  judgment  is  rendered,  and  the 
judgment-roll  is  filed,  may  make  an  order  vacating  the  second  judgment,  and 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    8 1 

Art.  15.     New  Trial  and  its  Effect  and  Evidence  Thereon. 

granting  a  new  trial,  upon  the  like  terms,  if  it  is  satisfied  that  justice  will  be 
thereby  promoted,  and  the  rights  of  the  parties  more  satisfactorily  ascertained 
and  established.  Not  more  than  two  new  trials  shall  be  granted  under  this 
section. 

g  1526.   Effect  of  judgment  by  default,  etc. 

A  final  judgment  for  the  plaintiff,  rendered  in  an  action  specified  in  this 
article,  otherwise  than  upon  the  trial  of  an  issue  of  fact,  is,  after  the  expiration 
of  three  years  from  the  filing  of  the  judgment-roll,  conclusive  upon  the  defend- 
ant, and  every  person  claiming  from,  through  or  under  him,  by  title  accruing, 
either  after  the  judgment-roll  is  filed,  or  after  a  notice  of  the  pendency  of  the 
action  is  filed  in  the  proper  county  clerk's  office,  as  prescribed  in  article  ninth  of 
this  title.  But  within  five  years  after  the  judgment-roll  is  filed,  the  court,  upon 
the  application  of  the  defendant,  his  heir,  devisee,  or  assignee,  and  upon  pay- 
ment of  all  costs  and  damages  awarded  to  the  plaintiff,  must  make  an  order 
vacating  the  judgment,  and  granting  a  new  trial,  if  it  is  satisfied  that  justice  will 
be  thereby  promoted,  and  the  rights  of  the  parties  more  satisfactorily  ascer- 
tained and  established;  but  not  otherwise. 

§  1527.  Id.;  exception  in  cases  of  disability. 

In  a  case  specified  in  the  last  section,  if  the  defendant  is,  at  the  time  of  the 
filing  of  the  judgment-roll,  either 

1.  Within  the  age  of  twenty-one  years;  or 

2.  Insane;  or 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  upon  conviction  of  a 
criminal  offence,  for  a  term  less  than  for  life; 

The  time  of  such  a  disability  is  not  a  part  of  the  three  years,  specified  in  the 
last  section;  but  such  a  defendant,  his  heir,  devisee,  or  assignee,  may  commence 
an  action  for  the  recovery  of  the  real  property  claimed,  at  any  time  within  three 
years  after  the  disability  ceases;  but  not  afterwards. 

§  1528.  The  last  three  sections  qualified. 

The  last  three  sections  are  not  applicable,  where  the  action  is  founded  upon 
an  allegation  of  rent  in  arrear;  or  in  a  case  to  which  section  445  of  this  act  is 
applicable. 

§  1530.  Evidence  on  new  trial. 

Upon  a  new  trial,  granted  as  prescribed  in  this  article,  the  defendant  may 
show  any  matter  in  defence,  which  he  might  show  to  entitle  him  to  recover  the 
possession  of  the  property,  if  he  was  plaintiff  in  the  action. 

The  rules  governing  the  appHcations  for  new  trials  in  other  civil 
cases  are  not  rigidly  enforced  in  ejectment,  and  a  new  trial  is 
frequently  ordered  in  that  class  of  cases  for  reasons  which  would 
be  considered  insufificient  in  other  cases.  Jackson  v.  Laird,  8 
Johns.  489;  Jackson  Y.  Dickenson,  15  Johns.  309;  Clayton  v.  Yar- 
rington,  33  Barb.  144.  It  was  not  the  intention  of  the  Legislature 
by  the  enactment  of  section  1525,  to  change  the  practice  as  to 
when  orders  for  new  trials  might  be  made,  but  to  fix  with  greater 
[Special  Actions  —  6.] 


82    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  15.     New  Trial  and  its  Effect  and  Evidence  Thereon. 

certainty  the  exact  date  from  which  the  absolute  right  to  a  new- 
trial  runs,  and  not  to  exclude  the  defeated  party  from  the  advant- 
ages of  anticipating  the  entry  of  judgment.  Post  v.  Moran,  61 
How.  122. 

The  statute  is  imperative,  and  an  order  granting  a  new  trial 
under  it  is  not  appealable  to  the  Court  of  Appeals.  Evans  v.  IVil- 
lard,  16  N.  Y.  619.  But  the  statute  does  not  apply  to  an  action 
to  test  the  validity  of  an  alleged  devise  —  Marvin  v.  Marvin,  Ct. 
App.  II  Abb.  (N.  S.)  102  —  nor  any  other  than  strict  legal  pos- 
sessory actions  in  the  nature  of  ejectment ;  it  does  not  apply  to 
equitable  actions  or  trespass;  SJminway  v.  Shumway,  ^2  N.  Y. 
143 ;  nor  to  an  action  in  equity  to  set  aside  conveyances  when  the 
decree  would  establish  or  destroy  title  to  land.  McConnell  v. 
McCullough,  14  St.  Rep.  621  ;  s.  c.  47  Hun,  405.  The  fact  that 
plaintiff  bought  in  defendant's  interest  in  the  premises  at  sheriff 
sale  on  execution  on  the  judgment  for  costs,  and  took  a  sheriff's 
deed,  does  not  preclude  defendant  from  his  right  to  move  for  a 
new  trial.  Phyfc  v.  Mastcrson,  45  Supr.  Ct.  338.  A  judgment 
on  a  verdict  on  an  inquest,  where  an  answer  has  been  interposed, 
is  not  a  judgment  by  default  so  as  to  prevent  defendant  from 
having  a  new  trial  of  right ;  a  judgment  by  default  means  one 
where  no  answer  is  interposed.  Sacia  v.  O'  Conor,  47  Supr.  Ct. 
53.  In  action  between  same  parties  —  79  N.  Y.  260,  afifirming  45 
Supr.  Ct.  633  —  the  right  to  a  new  trial  is  discussed  by  the  court. 

Where  a  party  who  had  purchased  land  subject  to  a  mortgage, 
which  she  assumed,  was  evicted  in  ejectment,  she  set  up  such 
eviction  in  a  subsequent  action  for  deficiency  on  the  mortgage ; 
she  succeeded  in  the  defence,  but  judgment  of  foreclosure  and 
sale  was  rendered.  Held,  that  the  purchaser  at  the  foreclosure 
sale  was  an  assignee  under  this  section,  and  could  apply  for  a  new 
trial  in  ejectment,  and  be  made  a  party.  Howell  v.  Lcavitt,  90 
N.  Y.  238.  At  the  time  of  granting  a  new  trial  leave  to  amend 
by  adding  parties  plaintiff  may  be  granted.  Martin  v.  Luke,  3 
Hill,  478. 

In  ejectment  to  enforce  a  forfeiture  for  non-payment  of  rent, 
the  defendant  is  entitled  to  a  new  trial  on  payment  of  costs. 
Recdv.  Loiicks,  61  How.  434.  Contra,  Christie  v.  Blooming  dale,  18 
How.  12.  Where  the  complaint,  in  addition  to  the  usual  aver- 
ments, stated  facts  sufificient  to  warrant  an  application  for  a 
receiver,  and   asked   for  an   injunction,  accounting  and   receiver. 


ACTION  TO  RECOVliR  REAL  PROPERTY  (EJECTMENT).         83 

Art.  15.      New  Trial  and  its  Effect  and  Evidence  Thereon. 

the  .suit  was  held  to  be  ejectment  and  the  defeated  plaintiff  en- 
titled to  a  new  trial.  Bucher  v.  Carroll,  19  Hun,  618.  The 
three  years  are  to  be  computed  from  the  first  judgment,  not  from 
its  affirmance.      Chautauqua  County  Bank  v.  White,  23  N.  Y.  349. 

The  courts  do  not,  ordinarily,  exercise  the  discretion  to  award 
a  second  new  trial  under  the  statute,  but  incline  to  remit  the 
applicant  to  the  ordinary  rights  of  a  defeated  suitor  by  appeal, 
Bellinger  V.  Mart indale,  8  How.  113;  Brown  v.  Crini,  i  Den.  665; 
Harris  v.  JVaite,  54  How.  113;  Wright  v.  Milbank,  9  Bosw.  672 ; 
PJiyfe  V.  Masterson,  45  Supr.  Ct.  338. 

A  judgment  may  be  opened  on  the  ground  that  it  was  not  de- 
fended through  ignorance  or  mistake.  Reed  v.  Loucks,  61  How. 
434;  Christie  V.  Bloomingdale,  18  How.  12,  not  approved.  Where 
the  plaintiff  has  been  put  into  possession  on  a  recovery  in  eject- 
ment, and,  on  appeal,  a  new  trial  is  awarded,  in  which  there  is  a 
verdict  for  defendant,  he  cannot  have  a  formal  judgment  of  resti- 
tution without  a  formal  judgment  of  the  court.  Martin  v.  Rec- 
tor, 63  How.  362. 

The  court,  upon  an  application  made  within  two  years  by  a 
party  in  ejectment,  against  whom  a  second  final  judgment  in  eject- 
ment has  been  rendered,  may  make  an  order  vacating  the  second 
judgment,  and  granting  a  new  trial,  upon  the  payment  of  all  costs 
and  damages,  other  than  the  payment  of  the  rents  and  profits,  if 
it  is  satisfied  that  justice  will  be  thereby  promoted,  and  the 
rights  of  the  parties  will  be  more  satisfactorily  ascertained  and 
established,  even  though  no  error  which  would  support  an  appeal 
has  been  committed,  and  though  the  evidence  was  sufficient  to 
support  the  verdict  of  a  jury,  and  there  is  no  claim  on  the  part  of 
the  applicant  of  surprise  or  newly-discovered  evidence.  The  dis- 
cretion to  be  exercised  by  the  court  is  legal  as  well  as  judicial,  and 
must  have  some  reason  for  its  support.  The  question  as  to 
whether  or  not  there  is  any  substantial  ground  for  the  exercise  of 
the  discretion,  is  subject  to  review  by  the  Appellate  Court,  upon 
an  appeal  from  the  order  made  by  the  court  below.  Kcelcr  v. 
Dennis,  39  Hun,  19. 

Plaintiff  recovered  judgment  and  was  put  in  possession  of  the 
premises;  defendant  paid  the  costs  and  took  a  new  trial  under  the 
statute;  thereupon,  plaintiff,  still  retaining  possession  under  the 
statute,  moved  for  leave  to  di.scontinue  on  payment  of  costs. 
Held,  that  in  denying  the  motion  the  court  below  did  not  exceed 


84    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  15.     New  Trial  and  its  Effect  and  Evidence  Thereon. 

its  discretionary  powers.  The  rule  is,  that  a  plaintiff  cannot  dis- 
continue without  the  payment  of  costs  and  the  entry  of  an  order. 
Carltofi  V.  Darcy,  75  N.  Y.  375.  The  party  seeking  a  new  trial 
is  required  to  pay  all  costs  and  damages,  other  than  for  rents  and 
profits  or  for  use  and  occupation  ;  but  where  the  damages  included 
what  is  technically  known  at  common  law  as  mesne  profits,  the 
party  is  not  required  to  pay  them  as  a  condition.  Risky  v.  Rice, 
II  Civ.  Pro.  R.  367. 

Section   1526  was  drafted   by  the  codifiers  so  as  to  eliminate 
the  words  "  on  default  "  in   speaking  of  the  entry  of  judgment, 
to  avoid  the  controversy  said  to  have  arisen  in  Lang  v.  Ropke,  i 
Duer,  701,  and   in   Christie  v.  Bloomingdale,    18   How.    12.     The 
phrase  "  judgment-roll  is  filed  "  has  also  been  substituted  for  the 
word  "  docketed  "   in   the  statute,  by  reason   of  the  decision  in 
Sheridan   v.  Andrews^  49  N.  Y.  478.     That  provision  of  the  stat- 
ute was  also  construed  in  SJieridan  v.  Linden,  81  N.  Y.  182,  where 
it  was  held  that  a  judgment  by  default  in  ejectment  was  not  con- 
clusive against  persons  claiming  under  defendant  unless  it  was  for 
three  years  docketed   in  the  of^ce  of  the  clerk  of  the  court  in 
which  it  was  rendered.      The  judgment  book  which  was  required 
to  be  kept  by  the  Code  of  Procedure  was  a  different  book  from 
the  docket  book,  and  it  must  be  entered  in  the  latter  to  be  suffi- 
cient.     In  Saciaw.  O' Conor,  47  Supr.  Ct.  53,  it  is  said  judgment 
by  default  means  judgment  on   failure  to  answer.      In  Howell \. 
Leavitt,  90  N.  Y.  238,  the  question  being  as  to  who  is  an  assignee 
within  the  meaning  of  this  and  the  preceding  section,  so  as  to  en- 
title him  to  the  benefit  of  the  provision  granting  a  new  trial,  it  is 
said  by  the  court  that  the  purpose  of  the  provision   is  to  furnish 
opportunity  to  establish  a  title  which  has  already  been  held  not 
to  exist,  and  to  permit  a  second  trial   of    a  disputed  title.      A 
judgment  rendered  on  default   in  ejectment   for  non-payment   of 
rent  may  be  vacated  where  justice  will  be  promoted    thereby. 
Reedv.  Loncks,  61  How.  434. 

As  to  granting  a  new  trial  in  ejectment  for  rent,  see  Reed  v. 
Loucks.  Section  445  relates  to  cases  where  the  summons  is  served 
otherwise  than  personally  within  the  State.  The  decision  in 
Christie  v.  Bloomingdale,  18  How.  12,  is  followed  as  to  the  provi- 
sions first  named. 

As  to  when  a  purchaser  at  a  foreclosure  sale  is  an  assignee 
under  sections  1525  and  1526,  see  Howell  v.  Leavitt,  90  N.  Y.  238. 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


I 


Art.  15.     New  Trial  and  its  Effect  and  Evidence  Thereon. 

The  section  is  mandatory  and  the  court  is  not  called  upon  to 
make  any  judicial  determination.  Gasz  v.  Strick,  30  St.  Rep. 
226;  s.  c.  9  N.  Y.  Supp.  408. 

Where  a  new  trial  was  granted  under  this  section,  it  was  held 
that  the  requirement  of  the  payment  of  an  extra  allowance  was 
pToper  although  it  was  not  advised.  Wing  v.  De  La  Rionda,  IJ 
St.  Rep.  404,20  Civ.  Pro.R.  183,  13  Supp.  793,  affirmed,  without 
opinion,  126  N.  Y.  680. 

Where  one  of  the  defences  in  an  action  of  ejectment  was  ad- 
verse possession  and  there  were  two  trials  and  defendant  availed 
herself  of  the  right  to  a  new  trial  under  .section  1525  and  paid  the 
costs  required,  it  was  held  that  plaintiff  should  not  be  allowed  to 
amend  by  bringing  in  another  party  plaintiff  who  claimed  to  be 
interested  in  the  property  because  it  would  present  a  new  issue. 
Crowley  v.  Murphy,  12  St.  Rep.  114;  s.  c.  10  N.  Y.  Supp.  698, 
19  Civ.  Pro.  R.  46. 

The  grounds  upon  which  a  new  trial  will  be  granted  in  eject- 
ment are  discussed   fully  in  note  to  Risly  v.  Rice,  1 1  Civ.  Pro.  R. 

367. 

The  provisions  of  the  Code  of  Civil  Procedure  (subd.  i,  sec- 
tion 191)  prohibiting  a  review  in  the  Court  of  Appeals  of  an  order 
of  General  Term  granting  a  new  trial,  except  upon  a  stipulation  for 
judgment  absolute  in  case  of  an  affirmance,  includes  actions  of 
ejectment.  Upon  the  trial  of  an  action  of  ejectment,  judgment  was 
awarded  upon  findings  of  fact,  in  favor  of  the  plaintiff,  which,  upon 
appeal,  was  reversed  by  the  General  Term  and  a  new  trial  ordered. 
Plaintiff  appealed  to  the  Court  of  Appeals,  giving  the  required 
stipulation,  for  judgment  absolute  in  case  of  affirmance.  The 
order  was  affirmed  and  judgment  absolute  duly  entered  in  the 
court  below  against  plaintiff  upon  the  remittitur.  Held,  that  the 
plaintiff,  by  the  stipulation,  waived  the  right  to  a  new  trial  given 
by  the  Code  of  Civil  Procedure  (sections  1524,  1525)  to  a  party 
in  such  an  action  against  whom  a  judgment  there  was  not  based 
upon  the  trial  of  an  issue  of  fact,  but  solely  upon  the  consent  of 
the  party  making  the  stipulation ;  and  that  the  right  of  review 
secured  by  the  stipulation  was  a  sufficient  consideration  for  it. 
Roberts  v.  Baumgarten,  126  N.  Y.  336,  37  St.  Rep.  482,  27  Abb. 
N.  C.  12,  affirming  34  St.  Rep.  586,  58  Supr.  407,  11   Supp.  699. 

An  action  to  declare  a  trust  in  real  property  and  to  compel  the 
defendant   to  convey  the  same  to  plaintiff   is   not  an  action  to 


86    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  15.     New  Trial  and  its  Effect  and  Evidence  Thereon. 


recover  real  property  in  which  a  party  is  entitled  to  a  new  trial 
under  section  1525.  This  section  includes  only  an  action  at  law 
to  recover  possession  of  land.  Strictly  it  does  not  include  actions 
in  equity  to  set  aside  conveyances  when  the  decree  would  estab- 
lish or  destroy  title  to  land.  McConnell  v.McCollough,  47  Hun, 
405;  s.  c.  14  St.  Rep.  621. 

In  Purdy  v.  Bennett,  68  Hun,  227,  51  St.  Rep.  876,  22  Supp. 
817,  the  respondent  was  entitled  under  section  1526,  upon  a  pecu- 
liar state  of  facts,  to  open  judgment  and  interpose  defence. 

Where  a  complaint  alleged  ownership  of  real  estate  and  a  forci- 
ble entry  and  retainer,  and  demanded  treble  damages,  it  was  held 
that  the  action  could  properly  be  considered  as  one  of  ejectment 
and  plaintiff  was  entitled  to  a  new  trial  under  section  1525. 
Compton  V.  "  The  Chelsea;'  139  N.  Y.  538,  54  St.  Rep.  843,  re- 
versing 70  Hun,  361,  54  St.  Rep.  112,  24  N.  Y.  Supp.  241. 

The  motion  to  set  aside  a  prior  order  obtained  for  a  new  trial 
in  ejectment,  to  modify  the  judgment  and  execution,  with  leave 
to  again  move  for  a  new  trial,  is  one  addressed  to  the  discretion 
of  the  court,  and  its  order  thereon  is  not  appealable  to  the  Court 
of  Appeals.     De  Lancey  v.  Piepgras,  141    N.  Y.  88,  56  St.  Rep. 

651. 

Section  loi  i  of  the  Code  requiring  the  appointment  of  another 
referee  where  a  new  trial  of  an  action  tried  before  a  referee  named 
in  the  stipulation  is  granted,  unless  the  stipulation  for  reference 
provides  otherwise,  applies  to  a  new  trial  in  ejectment  granted 
under  section  1525.  Brozvn  v.  Root  Manufacturing  Co.  76  Hun, 
159,  57  St.  Rep.  301,  27  Supp.  551,  affirmed  148  N.  Y.  294,  42 
N.  E.  Rep.  729. 

A  party,  by  bringing  an  action  in  equity  to  set  aside  a  deed, 
instead  of  an  action  of  ejectment,  thereby  waives  any  right  to  a 
new  trial  under  this  section.     Butts  v.  Fillmore,  45  St.  Rep.  452. 

Upon  a  trial  in  ejectment  an  extra  allowance  was  granted 
plaintiff  which  was  included  in  a  judgment  in  his  favor,  defendant 
took  a  new  trial  and  paid  all  the  costs  up  to  that  time  including 
extra  allowance ;  defendant  claimed  that  an  extra  allowance  could 
not  be  made  upon  a  second  trial,  this  was  held  untenable,  taking 
a  new  trial  was  in  effect  bringing  a  new  action  and  the  payment 
of  the  costs  including  extra  allowance  did  not  prevent  the  grant- 
ing of  another  extra  allowance  on  the  trial.  Wing  v.  Dc  La 
Rionda,  131  N.  Y.  422;  Bolton  v.  Schriever,  135  N.  Y.  65. 


ACTION  TO  RECOVER  REAL  I'Rdl'KR  IV  (EJECTMENT).  8/ 

Art.  i6.     Effect  of  Judgment. 

Sureties  on  an  undertaking  given  on  appeal  by  defendant  in 
ejectment,  are  released  when  defendant  pays  the  costs,  obtains  an 
order  vacating  the  judgment  and  comes  back  for  a  new  trial  of 
the  action  pursuant  to  the  statute ;  but  where  such  an  undertak- 
ing in  addition  to  the  usual  provisions  contains  a  covenant  that 
the  sureties  will  pay  "  the  value  of  the  use  and  occupation  "  of 
the  premises,  the  sureties  are  liable  for  such  use  and  occupation 
during  the  pendency  of  the  appeal.  Clason  v.  Ke]ioe,  87  Hun, 
368. 

The  effect  of  vacating  the  judgment  and  granting  a  new  trial 
upon  the  possession  is  considered  under  "  Effect  of  Judgment  " 
Art.  XVI. 

ARTICLE  XVI. 
Effect  of  Judgment.    §§  1529,  1524. 

§  1529.  Possession  not  to  be  changed  by  vacating  of  judgment,  except,  etc. 

Where  the  plaintiff  has  taken  possession  of  real  property  by  virtue  of  a  final 
judgment,  his  possession  shall  not  be  in  any  way  affected  by  the  vacating  of  the 
judgment,  except  as  prescribed  in  section  1525  or  section  1526  of  this  act.  In 
such  a  case,  if  the  defendant  thereafter  recovers  final  judgment  in  the  action,  it 
must  award  to  him  the  restitution  of  the  possession  of  the  property;  and  he 
may  have  an  execution  thereupon  for  the  delivery  of  the  possession  to  him,  as 
if  he  was  plaintiff. 

i^  1524.  EfTect  of  judgment  rendered  after  trial  of  issue  of  fact. 

Except  in  a  case  where  it  is  otherwise  expressly  prescribed  in  this  act,  a  final 
judgment  in  an  action  specified  in  this  article,  rendered  upon  the  trial  of  an 
issue  of  fact,  is  conclusive,  as  to  the  title  established  in  the  action,  upon  each  party 
against  whom  it  is  rendered,  and  every  person  claiming  from,  through,  or  under 
him,  by  title  accruing,  either  after  the  judgment-roll  is  filed,  or  after  a  notice  of 
the  pendency  of  the  action  is  filed  in  the  proper  county  clerk's  office,  as  pre- 
scribed in  article  ninth  of  this  title. 

Under  the  Code  of  Procedure  the  defendant's  remedy  under 
§  1529  was  to  apply  to  the  court  to  show  cause  why  possession 
should  not  be  delivered  to  him  and  an  order  was  then  granted  on 
the  hearing  to  show  cause.  Daiolcy  v.  Broivn,  43  How.  17. 
Where  a  judgment  in  ejectment  recovered  by  plaintiff  was  re- 
versed and  new  trial  granted  upon  which  defendant  recovered  a 
verdict  and  entered  judgment  for  restitution  of  the  premises  to 
him,  Jteld,  that  although  not  regular  to  insert  such  a  provision  in 
the  judgment  without  an  order  of  the  court,  the  defendant  was 


88    ACTK^X  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  i().     Effect  of  Judgment. 


entitled  to  such  relief  on  application  to  the  court.  Martin  v. 
Rector,  28  Hun,  409.  Restitution  will  be  ordered  as  of  course, 
but  without  prejudice  to  the  rights,  if  any.  of  a  purchaser 
pendente  lite.     Costar  v.  Peters,  4  Abb.  (N.  S.j  53. 

Where  a  recovery  by  plaintiff  was  set  aside  and  new  trial  ordered 
and  plaintifT  asks  to  submit  to  a  voluntary  non-suit,  on  the  new 
trial,  it  was  held  that  defendant  having  pleaded  a  claim  to  resti- 
tution of  the  premises  which  have  been  surrendered  under  the 
previous  judgment,  defendant  had  a  right  to  prove  the  facts  and 
take  a  judgment  for  restitution,  and  that  as  the  premises  were 
leasehold  premises,  judgment  should  not  provide  generally  for  the 
possession.      Conger  v.  Dnryee,  34  Hun,  560. 

A  judgment  to  recover  possession  of  land  takes  all  structures 
wrongfully  erected  upon  it.  De  Lancey  v.  Piepgras,  73  Hun, 
607,  56  St.  Rep.  835,  26  Supp.  806. 

Where,  after  a  grant  of  land  bounded  by  the  side  of  the  high- 
way to  the  center  of  which  the  grantor  owned,  the  highway  was 
discontinued  and  the  successor  of  the  grantor  brought  ejectment 
for  the  strip  in  front  of  the  premises  conveyed;  held,  that 
although  he  was  entitled  to  possession  it  was  subject  to  the  right 
of  the  grantee  to  have  the  part  of  the  former  highway  in  front 
of  his  premises  kept  open.  Holloway  v.  Soiithniayd,  139  N.  Y. 
390,  54  St.  Rep.  676. 

Where  the  defendant,  pending  an  action  of  ejectment,  acquires 
the  interest  of  plaintiff's  co-tenants,  the  judgment  should  not 
direct  its  removal,  as  neither  party  in  such  a  case  is  entitled  to 
exclusive  possession.  Archibald  v.  .V.  Y.  C.  cr  H.  R.  R.  Co.  i 
App.  Div.  251,  37  N.  Y.  Supp.  336,  72  St.  Rep.  689. 

It  was  not  the  intention  to  alter  the  former  practice  in  relation 
to  ejectment  by  inserting  the  words  "  and  the  judgment-roll  is 
filed  "  in  sections  1525  and  1526  as  a  substitute  for  the  previous 
provisions  as  to  "  docketing  "  the  judgment.  Post  v.  Moran,  62 
How.  122.  A  judgment  in  ejectment  is  only  conclusive  as  to  the 
title  established,  and  parol  proof  may  be  given  to  show  the  grounds 
of  it,  where  such  grounds  do  not  appear  of  record,  provided  the 
grounds  alleged  to  have  been  passed  upon  could  legitimately 
have  been  proved  under  the  issues.  Briggs  v.  Well,  12  Barb. 
567.  The  judgment  is  only  conclusive  as  to  the  parties  to  the 
action.  A  judgment  against  tenants  and  actual  occupants  is  not 
conclusive  in  an  action  against  the  person  under  whom  such  occu- 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         89 
Art.  r6.     Effect  of  Judgment. 


pants   held,   for    mesne  profits.     Ainslee  v.   Mayor,   etc.   of  New 
York,  I  Barb.   168. 

A  judgment  against  tenants  is  not  conclusive  on  the  landlord, 
although  he  retained  counsel  to  defend  the  tenants,  especially 
where  his  title  did  not  come  in  question.  Ryerss  v.  Rippey,  24 
Wend.  432,  affirmed,  4  Hill,  468.  The  effect  of  a  judgment  is 
the  same  as  in  any  other  action ;  it  binds  parties  and  privies. 
Bcebe  v.  Elliott,  4  Barb.  457.  And  the  filing  of  a  lis  pendens 
does  not  make  the  judgment  binding  upon  persons  not  parties  or 
privies.  Thompson  v.  Clark,  4  Hun,  164.  See  Wilson  v.  Davol,  ^ 
Bosw.  519;  Dnnekle  v.  Wiles,  6  Barb.  515;  Briggs  v.  Wells,  12 
Barb.  567;  Finnegan  v.  Carraher,  47  N.  Y.  493;  Sheridan  v. 
Andrews,  49  N.  Y.  478.  A  former  judgment  may  be  an  estoppel, 
though  no  land  is  described  in  the  record,  or  the  description  is 
incomplete,  or  in  part  unintelligible  if  parol  evidence  is  given 
showing  what  lands  were  the  subject  of  litigation.  Frantz  v. 
Irela^id,  4  Lans.  278;    Wood  v.  Jackson,  8  Wend.  9. 

A  judgment-roll  in  a  former  action  by  a  grantee  of  plaintiff's 
ancestors  against  defendant  to  recover  the  same  lands,  wherein  it 
was  adjudged  the  grantee  was  entitled  to  possession,  is  conclusive 
proof  of  the  right  of  possession  in  the  grantor,  and  the  statutory 
right  of  redemption  did  not  vary  its  effect  as  between  parties  and 
privies.  Caggcr  v.  Lansing,  64  N.  Y.  417,  affirming  4  Hun,  812. 
In  a  judgment  on  a  "  Manor  Lease  "  plaintiff  is  entitled  to  pos- 
session of  the  premises.  Van  Rensselaer  v.  Whitbeck,  2  Lans.  498. 
By  virtue  of  a  judgment  in  ejectment,  and  without  a  writ  of  pos- 
session, plaintiff  may  take  possession  of  the  premises  if  he  can  do 
so  peacefully.  People,  ex  rel.  v.  Cooper,  20  Hun,  486.  A  judg- 
ment in  ejectment  is  only  conclusive,  under  the  statute,  as  to  the 
title  actually  litigated  and  established  in  the  action ;  it  is  not  the 
recovery  which  constitutes  an  estoppel  in  a  subsequent  action, 
but  the  decision  of  the  question  which  was  contested  between 
the  parties.  In  case  of  plea  of  former  suit  in  bar,  the  point  is 
whether  the  same  title  is  sought  to  be  litigated  in  both  actions;  if 
not,  the  former  action  is  not  a  bar.  Dawley  v.  Brown,  79  N.  Y. 
390,  reversing  9  Hun,  461.  A  judgment  in  ejectment  is  not  con- 
clusive, nor  is  it  evidence  against  a  third  person  who  enters  into 
possession  under  a  tax  lease,  though  he  subsequently  acquires 
title  through  the  defendant  in  ejectment.  Sheridan  \.  Andrezvs, 
49  N.  Y.  478,  affirming  3  Lans.   179. 


90    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  17.     Costs  in  Ejectment. 

ARTICLE  XVII. 

Costs  in  Ejectment. 

The  costs  in  ejectment  are  regulated  by  the  Code.  §  3228,  as 
follows : 

"The  plaintiff  is  entitled  to  costs,  of  course,  upon  the  rendering  of  a  final 
judgment  in  his  favor,  in  either  of  the  following  actions  : 

"  I.  An  action,  triable  by  a  jury,  to  recover  real  property,  or  an  interest  in  real 
property  ;  or  in  which  a  claim  of  title  to  real  property  arises  upon  the  pleadings, 
or  is  certified  to  have  come  in  question  upon  the  trial." 

See  §  3248  as  to  certificate  of  judge. 

Where  the  claim  of  title  to  real  property  arises  on  the  plead- 
ings, and  plaintiffs  recover  a  verdict,  they  are  entitled  to  costs  as 
of  course.  Dcinpsey  v.  Hall,  35  Supr.  Ct.  201  ;  Nilcs  v,  Lindsley, 
8  How.  131.  This  is  true  only  in  actions  at  law,  and  does  not 
apply  to  equitable  actions.  Law  v.  McDonald,  9  Hun,  23.  And 
if  the  question  of  title  is  raised  by  the  pleadings,  an  admission  of 
title  on  the  trial  will  not  affect  the  question  of  costs.  Dunckel  v. 
Farley,  i  How.  180;  Nilcs  v.  Lindslcy,  8  How.  131  ;  Hiibbcllv. 
Rochester,  8  Cow.  115.  If  the  title  to  lands  be  not  put  in  issue 
by  the  pleadings,  nor  necessarily  proved  on  the  trial,  plaintiff  can- 
not have  costs  if  he  recover  less  than  $50.  Bnrnet  v.  Kelly,  10 
How.  406. 

A  plaintiff  is  not  entitled  to  costs  on  the  ground  that  title  came 
in  question  where  he  has  unnecessarily  framed  his  complaint  so 
as  to  require  defendant  to  set  up  a  plea  of  title,  and  defendant 
has  succeeded  on  the  plea.  Learn  v.  Currier,  15  Hun,  184, 
affirmed  70  N.  Y.  525.  In  an  action  of  ejectment,  by  vendor 
against  vendee,  for  default  in  payment  of  purchase-money,  the 
defendant,  if  successful,  is  entitled  to  costs.  CytJie  v.  Lafontai7i, 
51  Barb.   186. 

The  statutory  provisions  exclude  the  discretion  of  the  court  in 
awarding  costs  where  title  is  in  question,  so  that  it  is  error  to 
award  costs  contrary  to  statute.  Boardway  v.  Scott,  31  Hun,  378. 
The  certificate  of  the  judge  that  title  came  in  question  is  conclu- 
sive. Nilcs  w.  Lindslcy,  8  How.  131.  But  not  when  it  is  appa- 
rent from  the  pleadings  title  was  not  in  question.  Squires  v. 
Lenard,  16  How,  478.  Where  title  is  in  issue,  and  found  to  be  in 
defendant,  the  fact  that  plaintiff  recovers  nominal  damages  for 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    9 1 


Art.  17.     Cost  in  Ejectment. 


injury  to  chattels  does  not  entitle  him  to  costs.  Biirhans  v.  Tib- 
bitts,  7  How.  74.  A  claim  of  possession  is  not  a  claim  of  title  and 
where  the  gist  of  the  action  is  possession,  title  is  not  in  question, 
Rathbonc  v.  McConnell,  20  Barb.  311,  affirmed,  21  N.  Y.  466.  In 
ejectment  to  recover  two  distinct  parcels  of  land,  where  the  plain- 
tiff recovered  but  one  parcel,  held,  that  both  plaintiff  and  defend- 
ant were  entitled  to  costs,  although  the  complaint  contained  but 
one  count.  Coon  v.  Dicfcndorf,  8  Civ.  Pro.  R.  293.  It  seems 
that  costs  upon  a  recovery  in  ejectment,  by  the  lessor,  against  a 
tenant  under  a  perpetual  lease,  after  default  in  payment  of  rent, 
may  be  retaxed  upon  the  application  of  a  mortgagee  of  the  lease- 
hold who  seeks  to  redeem,  upon  payment  of  back  rent,  costs,  etc. 
Keelcr  v.  Kceler,  102  N.  Y.  30. 

Where  a  suit  before  a  justice  is  dismissed  on  a  plea  of  title,  if 
the  defendant,  on  another  action  being  brought  in  the  Supreme 
Court,  demurs  to  the  same  complaint  that  was  presented  in  Jus- 
tice Court,  the  plaintiff  is  entitled  to  costs  though  he  recover  less 
than  $50.  Locklin  v.  Casslcr,  50  How.  43.  A  party  taking  a  new 
trial  in  ejectment  under  the  statute,  cannot,  upon  a  recovery 
thereon,  tax  costs  for  the  proceedings  had  before  the  granting  of 
the  order  for  a  new  trial.  Carnes  v.  Piatt,  40  Supr.  Ct.  203. 
Granting  a  new  trial  in  ejectment  upon  the  payment  of  part  of 
defendant's  costs,  determines  the  right  to  prior  costs,  and  the 
plaintiff,  if  he  succeeds,  is  not  entitled  to  tax  them.  Provost  v. 
Far r ell,  13  Hun,  303. 

Where  the  controversy  was  with  regard  to  whether  or  not  the 
eaves  of  the  buildings  of  one  party  projected  over  the  property 
of  the  other  and  the  complaint  contained  a  count  in  ejectment 
and  the  answer  put  in  issue  the  ownership  of  the  land  occupied 
by  defendant's  buildings  and  many  other  facts,  it  was  held  that 
the  action  was  to  recover  real  property  and  within  the  meaning 
of  section  3228  and  that  plaintiff  was  entitled  to  costs.  Leprell 
V,  KleinscJnnidt,  112  N.  Y.  364.  See  ■}^']  St.  Rep.  404;  Whig  v. 
De  La  Rionda,  141  N.  Y.  422. 

Where  a  new  trial  was  had  under  the  statute  an  extra  allow- 
ance may  be  granted  without  reference  to  the  fact  that  such  an 
allowance  was  made  on  a  former  trial.  Wi?ig  v.  De  La  Rionda, 
141  N.  Y.  422;  Bolton  v.  Schreiver,  135  N.  Y.  65;  see  authori- 
ties cited  under  new  trial,  Art.  XV. 


92    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 


Art.  i8.     Execution  in   Ejectment. 


ARTICLE   XVIII. 
Execution  in  Ejectment. 

Under  the  Revised  Statutes,  provision  was  made  for  a  writ  of 
possession  on  behalf  of  a  plaintiff  recovering  judgment  in  eject- 
ment in  accordance  with  the  common  law  practice,  and  its  form 
was  prescribed  by  the  Repealing  Act ;  this  section  was  repealed, 
and  no  express  provision  made  in  this  chapter.  The  execution 
takes  the  place  of  the  writ  of  possession  in  use,  under  the 
former  practice.  Section  1240,  subd.  2,  provides  for  execution  in 
ejectment.  See,  also,  §  1675.  Such  an  execution  must  be  issued 
to  the  county  where  the  property  is  situated.      §  1365. 

The  provisions  of  §§  1364  and  1373  of  the  Code  of  Civil  Proce- 
dure are  ample,  and  prescribe  the  form  of  execution  in  such  case. 
By  §  1364  one  of  the  kinds  of  execution  is  described  as  "  For  the 
delivery  of  the  possession  of  real  property,  with  or  without  dam- 
ages, for  withholding  the  same,"  and  the  provisions  of  §  1373  are 

as  follows: 

"  An  execution  for  the  delivery  of  the  possession  of  real  property,  or  a  chattel, 
must  particularlv  describe  the  property,  and  designate  the  party  to  whom  the 
judgment  awards  the  possession  thereof  ;  and  it  must  substantially  require  the 
sheriff  to  deliver  the  possession  of  the  property,  within  his  county,  to  the  party 
entitled  thereto.  If  a  sum  of  money  is  awarded  by  the  same  judgment,  it  may 
be  collected,  by  virtue  of  the  same  execution  ;  or  a  separate  execution  may  be 
issued  for  the  collection  thereof,  omitting  the  direction  to  deliver  possession  of 
the  property.  If  one  execution  is  issued  for  both  purposes,  it  must  contain,  with 
respect  to  the  money  to  be  collected,  the  same  directions  as  an  execution  against 
property,  or  against  the  person,  as  the  case  requires." 

The  general  principles  governing  an  execution  doubtless  gov- 
ern the  writ  of  possession,  the  remedy  being  substantially  the 
same.  The  judgment  is  a  sufificient  warrant  for  the  writ  of  pos- 
session. Jackson  v.  Havi/and,  13  Johns.  229;  People  w.  Cooper, 
20  Hun,  486;  Witbeck  v.  Van  Rensselaer,  64  N.  Y.  27.  The 
sheriff,  while  he  has  the  writ,  may  remove  the  defendant,  or  his 
privies,  from  the  property  as  often  as  he,  or  they,  intrude  upon 
it ;  64  N.  Y.  27,  supra ;  and  the  same  case  holds  that  the  writ  could 
be  legally  executed  after  the  return  day,  the  presumption  being 
that  its  execution  was  commenced  before  that  time.  s.  c.  2  Hun,  55. 
It  is  the  duty  of  the  sheriff  to  remove  from  the  premises  the  per- 
sonal property  of  the  defendant;  People  v.  Cooper,  20  Hun,  486; 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    93 

Art.  18.     Execution  in  Ejectment. 

Witbeck  V.  Va7i  Rensselaer,  64  N.  Y.  27,  supra  ;  al.so  all  persons,  who 
claim  to  hold  possession  in  the  right  of  the  defendant.  Jackson  v. 
Tattle,  9  Cow.  233.  As  between  a  successful  plaintiff  in  ejectment, 
and  the  defendant,  the  crops  belong  to  plaintiff.  Lane  v.  King,  8 
Wend.  584;  Gillett  v.  Balcovi,  6  Barb.  370.  Where  lands  are 
recovered  subject  to  an  easement,  the  plaintiff  has  a  right  to  the 
delivery  of  the  lands,  subject  to  the  easement.  Reformed  Church 
V.  Schoolcraft,  65  N.  Y.  134.  The  execution  of  a  writ  of  posses- 
sion, issued  in  ejectment  for  non-payment  of  rent,  must  be  an 
open,  visible  and  notorious  change  of  possession,  a  merely  nomi- 
nal and  secret  execution  of  the  writ  is  not  sufficient,  and  the 
sheriff's  return  is  not  conclusive  on  that  point.  Neivell  v.  Whig- 
ham,  102  N.  Y.  20,  distinguishing  ]Vitbeck  v.  Van  Rensselaer, 
64  N.  Y.  27;  Brozvning  v.  Ha) ford,  5  Den.  86;  Baker  v.  Me- 
Dujfie,  23  Wend.  289;  Fiteh  v.  Devlin,  15  Barb.  47. 

Where  twenty  years  have  elapsed  since  the  recovery  of  the 
judgment,  the  granting  of  the  application  for  leave  to  issue  exe- 
cution or  a  writ  of  possession  is  discretionary  and  not  appeal- 
able. \^an  Rensselaer  v.  IVright,  31  St.  Rep.  897;  s.  c.  121 
N.  Y.626. 

Plaintiff  must  show  an  actual  ouster  in  order  to  recover.  Gil- 
man  V.  Oilman,  11 1    N.  Y.  265;  Earnshaiv  v.  Myers,  17  St.  Rep. 

703- 

Where  judgment  for  the  plaintiff  in  ejectment,  which  had  been 
aflfirmed  at  General  Term,  was  reversed  by  the  Court  of  Appeals, 
the  Special  Term  has  the  power  to  and  will  issue  a  writ  of  posses- 
sion to  restore  the  premises  in  question  to  the  defendant,  although 
the  judgment  of  the  Court  of  Appeals  does  not  provide  for  the 
issue  of  the  writ.  Carlton  v.  Mayor,  50  Su]:)r.  Ct.  177;  s.  c.  5 
Civ.  Pro.  418. 

Where  a  defendant  in  ejectment,  after  the  plaintiff  has  been 
put  in  possession  by  virtue  of  an  execution  issued  upon  the  judg- 
ment, takes  forcible  possession,  a  new  action  is  not  necessary,  but 
the  court  has  authority  to  direct  the  restoration  of  pos.session  to 
the  plaintiff  and  restrain  the  defendant  from  interfering  therewith. 
DeLancey  v.  Piepgras,  73  Hun,  608,  56  St.  Rep.  181,  26  Supp. 
807,  affirmed,  141  N.  Y.  88,  56  St.  Rep.  651. 

An  execution  issued  upon  a  judgment  for  an  undivided  inter- 
est in  real  estate  which  commands  the  sheriff  to  put  plaintiff  in 
possession  of  the  whole,  is  irregular  and   if  it  has  been   so  exe- 


94    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  i8.     Execution  in  Ejectment. 


cuted,  the  court  will  order  restitution  to  the  defendant  of  hi.s  in- 
terest in  the  premises.  Skinner  v.  OdenbacJi,  8i  Hun,  315,  62  St. 
Rep.  598,  30  Supp.  624. 

Section  1373,  authorizing  the  writ  of  possession  which  provides 
that  if  a  sum  of  money  is  awarded  it  may  be  collected  by  virtue 
of  the  same  execution,  only  intends  that  the  plaintiff  may  insert 
in  the  writ  of  po.ssession  a  mandate  to  collect  any  money  adjudged 
to  him  but  not  that  the  money  must  be  so  collected  or  that  it  can 
be  collected  without  the  insertion  of  a  mandate  to  that  efTect. 
Van  Rensselaer  v.  Wright,  56  Hun,  39.  The  appeal  was  dis- 
missed, 121  N.  Y.  626,  the  opinion  holding  that  the  judgment 
awarding  possession  terminates  the  lease  and  can  only  be  satisfied 
by  restoration  of  the  land ;  if  it  fixes  the  amount  of  rent  in 
arrears,  that  simply  bears  upon  the  defendant's  right  of  redemp- 
tion, he  having  the  privilege  of  averting  the  effect  of  the  judg- 
ment by  paying  up  his  arrears  of  rent. 

Precedent  for   Execution   to  put  Plaintiff  in  Possession  in 

Ejectment. 

The  People  of  the  State  of  New  York,  to  the  sheriff  of  the  coimty 
of  Ulster : 

Whereas,  A  judgment  was  rendered  on  the  2 2d  day  of  June,  1887. 
in  the  Supreme  Court,  in  an  action  in  said  court,  wherein  Daniel  E. 
Donovan  was  plaintiff,  and  James  H.  Vandemark  was  defendant,  in 
favor  of  the  plaintiff  and  against  the  defendant,  for  the  delivery  to 
the  defendant  of  the  possession  of  the  following-described  premises 
(insert  description  in  judgment),  and  also  for  the  recovery  by  the 
said  Daniel  E.  Donovan  against  said  James  H.  Vandemark,  for 
$2,350  damages,  and  $731.02  costs  of  this  action,  in  all  the  sum  of 
$3,081.02  damages  and  costs;  the  judgment-roll  upon  which  judg- 
ment was  filed  in  Ulster  county  clerk's  office  on  the  22d  day  of 
June,  1887,  and  docketed  on  the  same  day,  and  the  sum  of  $3,081.02, 
with  interest  thereon  from  the  22d  day  of  June,  1887,  is  actually  due 
thereon: 

Now,  therefore,  you  are  hereby  required  to  deliver  the  possession 
of  the  said  real  estate,  above  described,  within  your  county  to  the 
said  Daniel  E.  Donovan,  plaintiff,  and  to  satisfy  the  said  judgment 
of  $3,081.02,  with  interest  thereon  as  aforesaid,  out  of  the  personal 
property  of  the  said  judgment  debtor;  and  if  sufficient  personal 
property  cannot  be  found,  out  of  the  real  property  belonging  to 
him,  at  the  time  when  said  judgment  was  docketed  in  the  clerk's 
office  of  the  county  of  Ulster,  or  at  any  time  thereafter,    and   to 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    95 

Art.  19.     Ejectment  for  Non-payment  of  Rent  and  Procedure  Thereon. 

return  this  execution   to  the  clerk   of  the  county  of  Ulster,  within 
sixty  days  after  the  receipt  hereon. 

Witness,  Hon.  Alton  B.  Parker,  one  of  the  justices  of  said  court 
at  Kingston,  on  this  22d  day  of  June,  1887. 

JOHN  E.   VAN  ETTEN, 

Attorney  for  Plaintiff. 


ARTICLE  XIX. 

Ejectment  for   Non-payment   ok   Rent   and  Procedure 

Thereon.    §§  1 504-1 510. 

§  1504.  When  action  may  be  brought  for  non-payment  of  rent. 

When  six  months'  rent  or  more  is  in  an  arrear,  upon  a  grant  reserving  rent, 
or  upon  a  lease  of  real  property,  and  the  grantor  or  lessor,  or  his  heir,  devisee, 
or  assignee,  has  a  subsisting  right  by  law  to  re-enter  for  the  failure  to  pay  the 
rent,  he  may  maintain  an  action  to  recover  the  property  granted  or  demised, 
without  any  demand  of  the  rent  in  arrear,  or  re-entry  on  the  property. 

^  1505.  Id. ;  when  right  of  re-entry  is  reserved  for  want  of  distress. 

Where  a  right  of  re-entry  is  reserved  and  given  to  a  grantor  or  lessor  of  real 
property,  in  default  of  a  sufficiency  of  goods  and  chattels  whereon  to  distrain 
for  the  satisfaction  of  rent  due,  the  re-entry  may  be  made,  or  an  action  to 
recover  the  property  demised  or  granted,  may  be  maintained  by  the  grantor  or 
lessor,  or  his  heir,  devisee,  or  assignee,  at  any  time  after  default  in  the  payment 
of  the  rent;  provided  the  plaintiff,  at  least  fifteen  days  before  the  action  is  com- 
menced, serves  upon  the  defendant  a  written  notice  of  his  intention  to  re-enter, 
personally,  or  by  leaving  it  at  his  dwelling-house  on  the  premises  with  a  person 
of  suitable  age  and  discretion;  or,  if  the  defendant  cannot  be  found  with  due 
diligence,  and  has  no  dwelling-house  on  the  premises,  whereat  a  person  of 
suitable  age  and  discretion  can  be  found,  by  posting  it  in  a  conspicuous  place 
on  the  premises. 

§  1506.  Action  against  tenant,  when  proceedings  to  be  stayed. 

At  any  time  before  final  judgment  for  the  plaintiff  is  rendered,  and  the  judg- 
ment-roll is  filed,  in  an  action  brought  as  prescribed  in  either  of  the  last  two 
sections,  the  defendant  may  pay  or  tender  to  the  plaintiff  or  his  attorney,  or  pay 
into  court,  all  the  rent  then  in  arrear,  with  interest  and  the  costs  of  the  action  to 
be  taxed;  and  thereupon  the  complaint  must  be  dismissed. 

§  1 507.  Id.;  amount  of  rent  in  arrear  to  be  stated  in  judgment. 

In  such  an  action,  a  verdict,  report,  or  decision  in  favor  of  the  plaintiff,  must 
fix  the  amount  of  rent  in  arrear  to  the  plaintiff,  or,  if  judgment  is  taken  by  de- 
fault, the  amount  thereof  must  be  ascertained  by  or  under  the  direction  of  the 
court;  and,  in  either  case,  it  must  be  stated  in  the  judgment. 

§  1508.  Id.;  when  possession  to  be  restored  to  defendant. 

At  any  time  within  six  months  after  possession  of  the  property,  awarded  to 
the   plaintiff  in  such  an  action,  has  been  delivered  to  him  by  virtue  of  an  execu- 


g6         ACTION    TO   RECOVER  REM.  PROPKK'l  V  (EJECTMENT) 


Art.  19.     Ejectment  for  Non-payment  of  Rent  and  Procedure  Thereon. 

tion  issued  upon  a  judgment  rendered  therein,  the  defendant,  or  any  person 
who  has  succeeded  to  his  interest,  or  a  mortgagee  of  the  lease,  or  of  any  part 
thereof,  who  was  not  in  possession  when  final  judgment  was  rendered,  may  pay 
or  tender  to  the  plaintiff,  or  his  executor,  administrator,  or  attorney,  or  may  pay 
into  court,  for  the  use  of  the  person  so  entitled  thereto,  the  amount  of  rent  in 
arrear,  as  stated  in  the  judgment,  and  the  costs  of  the  action,  with  interest,  and 
all  other  charges  incurred  by  the  plaintiff. 

§1509.  The  same. 

Within  three  months  after  making  the  payment  or  tender,  the  person  who 
made  it,  or  his  representative,  may  apply  to  the  court  for  an  order  that  posses- 
sion of  the  property  be  delivered  to  him;  and  thereupon,  upon  proof  of  the  facts, 
and  payment  of  the  sum  due  by  reason  of  rent  accruing  since  the  judgment  was 
rendered,  and  upon  compliance  with  all  other  terms  to  be  complied  with  by  the 
grantee  or  lessee,  to  the  time  of  the  application,  the  court  must  make  an  order, 
directing  that  possession  of  the  property  be  delivered  to  the  applicant,  who  shall 
hold  and  enjoy  the  same,  without  any  new  grant  or  lease  thereof,  according  to 
the  terms  of  the  original  grant  or  lease.  Notice  of  the  application  must  be 
served  upon  the  plaintiff's  attorney. 

§  1510.  Id.;  use  of  property,  when  set  off  against  rent. 

If  possession  of  the  property  recovered  has  been  delivered  to  the  plaintiff,  by 
virtue  of  an  execution  issued  upon  a  judgment  in  the  action,  the  order  must 
provide  for  setting  off  the  sum  which  the  plaintiff  has  made,  or  which  he  might, 
without  willful  neglect,  have  made,  of  the  property  during  the  possession  there- 
of, against  the  rent  accruing  after  the  judgment  was  rendered,  and  for  re- 
imbursement to  the  applicant  of  the  balance,  if  any,  of  the  sum  paid  into  court 
by  him,  after  making  the  set-off  prescribed  in  this  section. 

Either  the  grantor  of  a  lease  in  fee  reserving  rent,  or  his  a.ssignee 
of  the  rent,  may  maintain  ejectment  upon  non-payment  of  the 
stipulated  rent.  Tyler  \.  Hcidorii,  4.6  Barb.  439;  J^an  Rensselaer 
V.  Sliiii^erla)ul,  26  N.  V.  580.  Ejectment  for  non-payment  of 
rent  is  not  limited  to  rent  service,  but  applies  to  all  cases  where 
there  was  a  right  to  re-enter  at  common  law.  Van  Rensselaer  v. 
Ball,  19  X.  Y.  100.  But  it  is  said  it  is  not  proper  unless  the 
lease  gives  a  right  of  re-entry.  Va)i  Rensselaer  v.  jfeiuett,  2  N.  Y. 
141.  In  Par  melee  v.  Ostvcgo,  ete.  R.  R.  Co.  6  N.  Y.  74,  it  is  held, 
that,  upon  breach  of  a  condition  annexed  to  a  lease  for  years,  the 
estate  ceases  without  entry,  and  the  lessor,  or  any  one  succeed- 
ing to  the  estate,  may  have  ejectment  to  recover  possession,  except 
where  the  lease  expressly  provides  that  the  lessor  shall  enter.  In 
an  action  to  recover  possession  for  non-payment  of  rent,  a  de- 
mand need  not  be  alleged,  or  notice  of  intention  to  re-enter. 
Mayor  v.  Campbell,  18  Barb.  156.  In  Martin  v.  Rector,  43  Hun, 
371,  it  is  held,  that  to  maintain  ejectment  by  re-entry  for  non-pay- 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    9/ 

Art.  19.     Ejectment  for  Non-payment  of  Rent  and  Procedure  Thereon. 

ment  of  rent  reserved  in  a  lease,  and  an  insufficiency  of  goods 
whereon  to  distrain,  as  provided  by  such  lease,  it  is  necessary  to 
allege  and  prove  the  giving  of  the  fifteen  days'  notice  provided 
for  by  this  section.  Ejectment  for  non-payment  of  rent  lies  by 
the  assignee  of  the  lease ;  Main  v.  Green,  32  Barb.  448 ;  or  by  the 
personal  representatives  of  assignee  of  a  life  lease.  Mosher  v. 
Yost,  33  Barb.  277. 

Ejectment  for  rent  cannot  be  maintained  where,  by  summary 
proceedings,  the  lease  has  been  terminated.  Stiiyvesant  v.  Griss- 
ler,  12  Abb.  (N.  S.)  6.  Where  the  tenants  of  a  large  tract  parti- 
tioned among  themselves  without  the  privity  of  the  landlord,  it 
must  appear  that  there  was  not  a  sufficient  distress  upon  any  part, 
before  he  can  maintain  ejectment  upon  any  part.  Jackson  v. 
VVyckoff,  5  Wend.  53. 

The  provision  requiring  notice  of  intention  to  re-enter  may  be 
waived  by  a  provision  in  the  lease,  that  "  if  the  yearly  rent  is  not 
paid  at  the  time  appointed,  the  landlord  may  re-enter  on  the 
premises  and  re-possess  them."     Hosford  v.  Ballard,  39  N,  Y.  147. 

After  forfeiture  has  accrued  for  non-payment  of  rent,  it  may  be 
waived  by  the  lessor,  by  acts  as  well  as  words,  and  it  will  be  so 
waived,  and  the  right  of  action  lost,  if  he  then  does  any  act  which 
amounts  to  an  acknowledgment  of  an  existing  tenancy,  as  receiv- 
ing rent  due  at  a  subsequent  quarter;  Collins  v,  Hasbrouck,  56 
N.  Y.  157;  or,  if  he  distrains  for  that  in  arrears,  or  receives  such 
arrears,  and  gives  a  receipt  therefor,  in  which  he  calls  the  party 
paying  his  tenant.  Jackson  v.  S/icldon,  5  Cow.  448.  If  the  land- 
lord is  ignorant  of  the  forfeiture,  the  receipt  of  rent  is  no  waiver. 
Jackson  V.  Brownson,  7  Johns.  227.  It  is  also  held,  that  the 
receipt  of  rent  is  not  a  waiver,  unless  such  rent  accrued  after  for- 
feiture, and  then  it  validates  the  lease  only  to  the  time  of  pay- 
ment. But  that,  if  the  lessor,  with  a  full  knowledge  of  the  for_ 
feiture,  accepts  rent  which  fell  due  after  that  event,  he  waives 
such  forfeiture.  Jackson  v.  Allen,  3  Cow.  220.  A  devisee  of  one 
who  has  granted  land  in  fee,  subject  to  rent,  cannot  maintain 
ejectment  for  rent  accruing  prior  to  the  death  of  the  testator,  but 
only  for  what  has  accrued  since.  Vati  Rensselaer  v,  Hayes,  5 
Den.  477.  The  lessor  is  presumed  to  have  taken  possession  at 
the  time  of  the  service  of  the  complaint,  and  when  he  takes  pos- 
session at  the  termination  of  the  action,  such  possession  relates 
back.  Samson  v.  Rose,  65  N.  Y.  411.  In  ejectment  for  rent  the 
[Special  Actions  —  7.] 


98    ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT), 

Art.  19.     Ejectment  for  Non-payment  of  Rent  and  Procedure  Thereon. 

tenant  may  show  a  partial  eviction  from  the  easement  by  way  of 
counterclaim,  and  is  not  put  to  his  cross  action.  Blair  v.  Claxton, 
18  N.  Y.  529.  Proof  of  actual  entry  or  demand  of  possession  is 
not  necessary  before  bringing  ejectment,  where  the  condition  of 
the  lease  is  forfeited.  Hosford  v.  Ballard,  39  N.  Y.  147  ;  Crugcr 
V.  McLaury,  41  N.  Y.  219;  Plumb  v.  Tubbs,  41  N.  Y.  442.  Dis- 
tress being  abolished  the  provision  making  the  absence  of  sufifi- 
cient  property  a  condition  of  re-entry  for  non-payment  of  rent, 
ceases  to  be  operative.  Van  Rensselaer  v.  Snyder,  13  N.  Y.  299. 
The  following  are  the  provisions  of  the  Revised  Statutes  still  in 
force,  relating  to  notice  to  tenant  as  a  condition  precedent  to 
ejectment  (9th  ed.  p.  18 19): 

§  7.  Wherever  there  is  a  tenancy  at  will,  or  by  sufiferance,  created  by  the  ten- 
ant's holding  over  his  term,  or  otherwise,  the  same  may  be  terminated  by  the 
landlord  giving  one  month's  notice,  in  writing,  to  the  tenant,  requiring  him  to 
remove  therefrom. 

§  8.  Such  notice  shall  be  served  by  delivering  the  same  to  such  tenant,  or  to 
some  person  of  proper  age,  residing  on  the  premises,  or  if  the  tenant  cannot  be 
found,  and  there  be  no  such  person  residing  on  the  premises,  such  notice  may  be 
served  by  affixing  the  same  on  a  conspicuous  part  of  the  premises  where  it  may 
be  conveniently  read. 

§  g.  At  the  expiration  of  one  month  from  the  service  of  such  notice,  the  land- 
lord may  re-enter  or  maintain  ejectment,  or  proceed  in  the  manner  prescribed  by 
law,  to  remove  such  tenant  without  any  further  or  other  notice  to  quit. 

It  is  a  fundamental  principle  that  as  between  landlord  and  ten- 
ant, the  tenant  is  estopped  from  disputing  the  title  of  the  landlord 
or  claiming  under  a  title  hostile  to  that  under  which  he  entered, 
or  a  title  which  he  acquired  during  his  tenancy.  Jackso7t  v. 
McLeod,  12  Johns.  182;  Jackson  v.  Harder,  4  Johns.  202 ;  Ver- 
nam  v.  Smith,  15  N.  Y.  327;  Territt  v.  Cowenhoven,  79  N.  Y. 
400;  Colton  V.  Harper,  5  Wend.  246;  Jackson  v.  Hinman,  10 
Johns.  292;  Tompkins  \.  Snow,  6-^  Barb.  525.  This  is  upon  the 
principle  that  the  landlord  if  compelled  to  litigate  the  title  must 
be  put  in  as  good  a  position  by  his  tenant  as  when  he  gave  him 
possession.  Glen  v.  Gibson,  9  Barb.  638.  The  landlord  cannot, 
however,  maintain  ejectment  during  the  term  against  the  tenant 
for  non-payment  of  rent  unless  there  is  a  clause  in  the  lease  giving 
the  right  of  re-entry  for  condition  broken  and  then  only,  on  com- 
pliance with  the  statute  cited,  as  to  notice.  Va?i  Rensselaer  v. 
Jewett,  2  N.  Y.  141 ;  Tyler  v.  Heidorn,  46  Barb.  439;  Delancy 
V.  Ganong,  9  N.  Y.  25;  Hosford  v.  Ballard,  39  N.  Y.  147.     As  to 


\ 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).    99 


Art.  ig.      Ejectment  for  Non-payment  of  Rent  and  Procedure  Thereon. 

what  constitutes  a  waiver  of  such  right,  see  Conger  v.  Duryca,  12 
Week.  Dig.  225;  Jackson  v.  Sheldon,  5  Cow.  448;  Ireland  v. 
Nichols,  46  N.  Y.  413.  The  tenant  may  show  title  out  of  the 
landlord  where  the  latter's  title  has  expired  since  the  creation 
of  the  tenancy.  Jackson  v.  Rozvland,  6  Wend.  66();  Hoag  v. 
Hoag,  35  N.  Y.  469;  Armstrong  v.  Wheeler,  9  Cow.  88.  As  to 
remedy  by  ejectment  against  tenant  for  waste,  see  Vcrplank  v. 
WrigJit,  23  Wend.  506;  Jacksoii  v.  Broumson,  7  Johns.  227; 
People  V.  Alberty,  11  Wend.  162;  Livingston  v.  Reynolds,  26 
Wend.  115;  McGregor  v.  Brozvn,  10  N.  Y.  114;  Erwin  v.  Olm- 
sted, 7  Cow.  229;  Suffern  v.  Townsend,  (^  Johns.  35;  Cooper  v. 
Slower,  9  Johns.  331  ;  Phillipps  v.  Covert,  7  Johns,  i  ;  Schermer- 
horn  V.  Biiell,  4  Den.  422.  As  to  when  the  landlord  may  re-enter 
on  breach  of  condition,  see  Stuyvesant  v.  Davis,  9  Paige,  427 ; 
Parmelee  v.  O.  &  S.  R.  R.  Co.  6  N.  Y.  74;  Collins  v.  Hasbrouck, 
56  N.  Y.  157;  Morton  v.  Weir,  70  N.  Y.  247.  Where  the  issue 
is  one  of  title  only,  no  demand  or  notice  is  necessary.  Wood  v. 
Wood,  18  Hun,  350,  affirmed,  83  N.  Y.  575;  Eysarnan  v.  Eysa- 
man,  24  Hun,  430. 

A  tenant  for  the  life  of  another,  who  continues  in  possession 
after  the  death  of  such  life  tenant,  is  not  entitled  to  notice  to  quit. 
Livingston  v.  Tanner,  14  N.  Y.  64.  The  receipt  of  rent  under  a 
lease  void  by  the  Statute  of  Frauds  does  not  render  it  valid,  but 
in  such  case  there  must  be  notice  to  quit.  Reedcr  v.  Sayre,  70 
N.  Y.  1 80;  Lonnsbery  V.  Snyder,  31  N.  Y.  514. 

To  entitle  a  tenant  holding  over  a  term  to  notice,  the  holding 
over  must  be  for  such  time  as  to  authorize  the  implication  of 
assent  to  such  continuance  by  the  landlord.  ScJmyler  v.  Smith, 
51  N.  Y.  309;  Conway  v.  Starkweather,  i  Den.  113.  Where  a 
party  enters  upon  land  for  an  indefinite  period  by  permission  of 
the  owner,  even  if  no  rent  is  reserved,  he  becomes  a  tenant-at- 
will  and  is  entitled  to  notice  to  quit.  Burns  v.  Bryant,  31  N.  Y. 
453;  Lamed  v.  Hudson,  60  N.  Y.  102;  Post  v.  Post,  14  Barb. 
253.  As  to  the  right  of  tenant  to  notice,  after  committing  such 
waste  as  to  terminate  the  tenancy,  see  Harris  v.  Fink,  49  N,  Y. 
24.  The  right  of  the  tenant  to  notice  may  be  waived  by  him  by 
provision  in  the  lease.  Hosford  v.  Ballard,  39  N.  Y.  147.  So 
the  landlord  may  waive  his  right  of  action  which  has  accrued  by 
service  of  notice,  by  receiving  rent.  Prindle  v.  Atiderson,  19 
Wend.    391  ;  Collins  v.  Hasbrouck,   56  N.   Y.    157.     The  notice 


lOO   ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT). 

Art.  ig.     Ejectment  for  Non-payment  of  Rent  and  Procedure  Thereon. 


cannot  be  served  by  leaving  it  at  the  tenant's  place  of  business 
in  his  absence.     Banks  v.  Carter,  7  Daly,  417. 

Where  lessors  had  given  notice  of  their  election,  to  avail  them- 
selves of  a  right  to  terminate  a  lease  for  non-payment  of  rent, 
and  the  lessees  then  tendered  the  rent,  which  was  refused,  held, 
that  the  lessees  could  maintain  an  action  to  restrain  the  lessors 
from  summary  proceedings  to  recover  the  premises,  and  enforcing 
the  forfeiture.     Norton  v.  N.  Y.  C.  &  H.  R.  R.  R.   Co.  12  Abb. 

N.  C.  30. 

A  lease  is  not  so  defeated  by  rent  in  arrears,  but  that  on  pay- 
ment of  the  rent,  the  rights  of  the  tenant  are  reinstated.  Holden 
v.  Sackett,  12  Abb.  473.  The  six  months  in  which  lessees  or  per- 
sons claiming  under  them  may  redeem,  commence  running  from 
the  date  of  the  eviction  of  defendant  in  possession,  under  the  writ 
of  possession.  Newell  v.  Wigham,  16  Week.  Dig.  295;  Whit  beck 
V.  Van  Rensselaer,  64  N.  Y.  27. 

The  Revised  Statutes  —  2  R.  S.  506,  §  36  —  for  which  this  is  a 
substitute,  provided  for  filing  a  bill  within  six  months  after  exe- 
cution, and  made  no  provision  as  to  the  conditions  on  which 
relief  was  to  be  granted.  It  was  held,  under  the  statute,  that  a 
lessee  or  tenant  might  redeem,  by  paying  or  tendering  to  the 
landlord,  the  rent  in  arrears  and  costs  in  an  action  to  re-enter,  for 
non-payment  of  rent,  whether  the  action  at   common  law  or 

under  the  statute,  and  might  have  an  action   in   equity  for  that 
purpose.      Coming  v.  Beach,  26  How.  289. 

To  maintain  ejectment  by  re-entry  for  non-payment  of  rent 
reserved  in  the  lease  and  insufficiency  of  case  whereon  to  retain 
his  property  by  such  lease,  it  is  necessary  to  allege  and  prove  the 
giving  of  the  fifteen  days'  notice  provided  for  by  §  1505.  Mar- 
tin V.  Rector,  43  Hun,  371. 

The  Van  Rensselaer  leases  come  under  these  sections  and  no 
demand  is  necessary  under  them.  Martin  v.  Rector,  118  N.  Y. 
476,  30  St.  Rep.  27,  reversing  43  Hun,  371. 

In  an  action  to  recover  the  premises  on  the  ground  that  six 
months  or  more  rent  was  in  arrears,  it  was  held  that  the  right  to 
re-enter  for  non-payment  of  rent  was  not  limited  to  the  case  of 
default  of  sufficient  distress,  but  that  the  general  condition  autho- 
rizing a  re-entry  in  case  of  a  breach  of  either  of  the  covenants, 
applied  to  the  covenant  to  pay  rent  and  that  therefore  to  main- 
tain an  action  it  was  not  necessary  to  show  that  before  the  com- 


1 


ACTION  TO  RECOVER  REAL  PROPERTY  (EJECTMENT).         lOI 
Art.  ig.     Ejectment  for  Non-payment  of  Rent  and  Procedure  Thereon. 


mencement  of  the  fifteen  days,  notice  in  lieu  of  a  distress  for  rent, 
required  by  §  1505,  before  the  bringing  of  an  action  of  ejectment 
where  a  right  of  re-entry  is  reserved  in  default  of  a  sufificient  dis- 
tress, was  given.     Martin  v.  Rector,  118  N.  Y.  476. 

The  requirement  of  §  1507,  that  the  amount  of  rent  in  arrears, 
must  be  "  fixed  "  in  a  judgment  of  ejectment,  is  only  intended 
to  enable  the  defendant  to  avail  himself  of  §§  1508  and  1509 
authorizing  a  redemption  of  the  land  by  the  payment  of  the 
amount  of  rent  due  with  interest  and  costs;  it  confers  a  privilege 
upon  the  defendant  and  does  not  create  a  judgment  against  him. 
Where  under  a  judgment  in  ejectment  the  plaintiff  is  entitled  to 
take  possession  at  once  of  the  land,  and  the  defendant  has  a  right 
on  the  payment  of  a  certain  sum  to  retain  possession  or  to  recover 
it  within  six  months  after  it  has  been  lost,  and  the  defendant 
remains  in  possession  for  more  than  twenty  years,  the  presump- 
tion is  that  the  defendant  has  at  some  time  during  this  period 
paid  the  necessary  sum  and  thus  become  entitled  to  keep  posses- 
sion.     Van  Rensselaer  v.  WrigJit,  56  Hun,  39,  29  St.  Rep.  468. 

Chureh  v.  Seeley,  no  N.  Y.  457,  discusses  the  construction  of 
§  1507  and  other  sections  relating  to  this  matter  of  ejectment  be- 
tween landlord  and  tenant. 


CHAPTER  II. 

PARTITION.* 

PAGE. 

Article    i.   Nature  of  action  and  jurisdiction  of  the  courts 104 

2.  Partition  by  parol  and  by  agreement.     Sees.  1590, 

1591,    1592,1593 106 

3.  When  action  may  be  brought  and  by  whom.     Sees. 

1532,  i533>  1537-     Rule  65 108 

4.  Restrictions  and  regulations  as  to  partition  by  an 

infant.    Sees.  1534,  i535,  153^ 122 

5.  Necessary  and  proper  parties  in  partition.     Sees. 

1538,  1539,  1594,  1540,  1588 133 

6.  Complaint  to  state  interests  of  parties.    Sec.  1542,   146 

7.  Matters  of  practice.     Sec.  1541 162 

8.  Receiver 173 

9.  What  questions  may  be  tried  in  the  action  and  in 

what  manner.      Sees.  1543,  1544 174 

10.  Reference  as  to  title  and  as  to  creditors.     Sees. 

1545.  1561,  1562 179 

11.  Interlocutory  judgment.     Sees.    1546,  1563,  1572, 

1573,  1574,  1575 194 

12.  Dower  interest  and  how  affected   by   sale.     Sees. 

1567,  1568,  1569,  1570,  1571.     Rules  70,  68 212 

13.  Sale,  report  of  sale  and  confirmation,  re-sale.     Sec. 

1576 220 

14.  Final  judgment,  its  contents  and  effect.   Sees.  1577, 

1578,    1579,    1580,  1581,    1582,  1583,  1584,  1585, 
1586,  1589,  1595  230 

15.  Application  for    moneys  paid   into  court.       Sees. 

1564,1565,1566.      Rule  69 255 

16.  Actual  partition.      Sees.     1547,    1548,    1549,    1550, 

1551,  1552,  1553,  1554,    1555,    1556,    1557,  1558, 
1559,  1560,  1587 -    257 

Sections  of  the  Code  of  Procedure  and  Where  Found  in  this 

Chapter. 
SEC.  art.  page. 

1532.  When  action  for  partition  may  be  brought 3       ^08 

1533.  Id.;  by  remainderman 3       1^7 

1534.  Id.;  by  an  infant 4       122 

*The  law  and  practice  of  partition  in  this  State  is  treated  Knapp  on  Parti- 
tion. Freeman  on  Co-tenancy  and  Partition  treats  the  subject  in  its  general 
aspect.  The  subject  is  also  fully  considered  in  article  "  Partition,"  American 
and  English  Encyclopedia  of  Law. 

1 102I 


PARTITION.  103 


Sections  of  the  Code  and  Where  to  be  Found  in  this  Chapter. 
Sections  of  the  Code — Continued. 

SEC-  ART.  PAGE. 

1535.  Guardian  ad  litem;  how  appointed 4  124 

1536.  Security 4  131 

1537-  When    heir    may    maintain    action    for    partition    of    devised 

property 3  120 

1538.  Who  must  be  parties 5  133 

1539.  Who  may  be  made  parties 5  134 

1 540.  Id. ;  as  to  persons  having  liens 5  145 

1541.  Provision,  where  a  party  is  unknown 7  162 

1542.  Complaint  to  state  interests  of  parties 6  146 

1543.  Title  of  parties  may  be  tried 9  174 

1544.  Issues  of  fact,  triable  by  jury 9  178 

1545.  When  title  to  be  ascertained  by  the  court 10  179 

1546.  Interlocutory  judgment 11  194 

1547.  Partial  partition;  when  made 16  257 

1548.  Shares  may  be  set  off  in  common 16  258 

1549.  Appointment  of  commissioners 16  258 

1550.  Commissioners  to  be  sworn,  etc 16  258 

1551.  Id. ;  when  to  make  partition 16  25S 

1552.  Partition;  how  made 16  259 

1553.  Provision  where  there  is  a  particular  estate 16  259 

1554.  Report  of  commissioners 16  265 

1555.  Fees  and  expenses 16  266 

1556.  Confirming  or  setting  aside  report 16  266 

1557.  Final  judgment  on  report;  effect  thereof 16  269 

1558.  Judgment  must  direct  delivery  of  possession   16  269 

1559.  Costs;  how  awarded.     Id.;  against  unknown  parties 16  269 

1560.  Sale  of  property;  when  directed 16  270 

1 561.  Reference  to  inquire  as  to  creditors 10  190 

1562.  Duty  of  referee 10  igo 

1563.  Money  to  be  paid  into  court 11  199 

1564.  Application  for  money 15  255 

1565.  Payment  of  incumbrances 15  255 

1566.  Other  parties  not  to  be  delayed 15  255 

1567.  Sale  of  dower  interest 12  212 

1568.  Purchaser  to  hold  the  property  free  therefrom 12  212 

1569.  Gross  sum  to  be  paid  to  or  invested  for  tenant  in  dower,  etc    . .  12  212 

1570.  Interests  of  owners  of  future  estates  to  be  protected 12  213 

1 571.  Married  woman  may  release  her  interest 12  213 

1572.  Unknown  owners 11  199 

1573.  Sale;  terms  of  credit  thereupon il  199 

1574.  Credit;  how  secured , 11  199 

1575.  Separate  securities 11  199 

T  576.  Report  of  sale 13  220 

T 577.   Final  judgment;  effect  thereof 14  230 

1578.  Id.;  effect  thereof  upon  incumbrancers 14  231 

1579.  Costs  and  expenses;  how  paid 14  252 

1580.  Distribution  of  proceeds 14  242 


I04  PARTITION. 


Art:  I.     Nature  of  Action  and  Jurisdiction  of  the  Courts. 
Sections  of  the  Code  —  Continued. 

SEC.  ART.  PAGE. 

1581.  Shares  of  infants 14  242 

1582.  Id.;  of  unknown  and  absent  owners 14  231 

1583.  Id. ;  of  tenants  of  particular  estates 14  233 

1584.  Court  may  require  security  to  refund 14  233 

1585.  Security  to  be  taken  in  name  of  county  treasurer 14  233 

1586.  Action  thereupon 14  233 

1587.  Compensation  to  equalize  partition 16  273 

1588.  Proceedings  on  death  of  parties     5  142 

1589.  Rents,  etc.,  may  be  adjusted 14  250 

1590.  Partition  by  guardian  of  infant,  committee  of  lunatic,  etc 2  107 

1591.  Contents  of  petition 2  107 

1592.  Court  may  authorize  partition 2  107 

1593.  Effect  of  releases 2  108 

1 594.  When  the  State  is  interested 5  135 

1595.  Exemplified  copy  of  judgment  may  be  recorded 14  233 


ARTICLE  I. 
Nature  of  Action  and  Jurisdiction  of  the  Courts. 

Sub.  1.  Character  of  the  action. 
2.  Jurisdiction  of  the  courts. 

Sub.  I.  Character  of  the  Action. 

Partition  is  the  division  which  is  made  among  several  persons 
of  lands,  tenements,  hereditaments,  goods  or  chattels,  technically- 
applied  to  the  division  of  real  estate  between  co-parceners,  ten- 
ants in  common  and  joint  tenants.  Bouvier,  Law  Dictionary, 
title  Partition. 

The  proceedings  for  partition  at  common  law  were  exceedingly 
cumbersome  and  unsatisfactory,  and  at  an  early  day  statutory  en- 
actments were  made  regulating  the  division  of  estates  among 
joint  tenants  and  tenants  in  common,  and  at  a  later  day,  chancery, 
without  further  legislative  sanction,  began  to  exercise  jurisdiction 
in  suits  of  partition,  and  the  writ  of  partition  which  had  been  the 
process  at  common  law  fell  into  disuse  and  was  finally  abolished 
and  the  Court  of  Chancery  obtained  exclusive  jurisdiction.  In 
this  country,  in  some  of  the  States,  jurisdiction  in  partition  is 
exercised  exclusively  by  probate  courts,  in  others  by  the  law 
courts,  and  in  still  others  it  is  a  matter  exclusively  of  equity  juris- 
diction. Freeman  on  Co-tenancy  and  Partition,  §  420  et  seq. 
Partition  is  a  matter  of  right  as  well  at  common  law  as  by  statute. 


PARTITION.  10=; 


Art.  I.     Nature  of  Action  and  Jurisdiction  of  the  Courts. 

Gallic  V.  Eagle,  65  Barb.  583;  Chimi  v.  Keith,  i  Hun,  589; 
Tripp  V.  Riley,  15  Barb.  334;  Smith  v.  Smith,  10  Paige,  470 ; 
Haywood  v.  Judson,  4  Barb.  228.  The  fact  that  an  issue  joined 
in  partition  is  triable  by  jury  does  not  change  the  equitable  char- 
acter of  the  action.      Jones  v.  Jones,  5  St.  Rep.  610. 

Sub.  2.   Jurisdiction  of  the  Courts. 

The  Supreme  Court,  by  virtue  of  its  general  equity  powers  as 
successor  to  the  Court  of  Chancery,  under  §  217,  Code  of  Civil 
Procedure,  has  jurisdiction  in  partition  —  also  the  county  courts 
under  §  340.     Doubleday  v.  Heath,  16  N.  Y.  80. 

The  Supreme  Court  has  no  original  inherent  power  to  partition 
and  sell  the  real  estate  of  infants,  and  proceedings  for  that  pur- 
pose are  authorized  alone  by  the  Legislature,  and  the  limits  im- 
posed upon  them  are  controlling  on  the  court.  Miiller  v.  Stripp- 
inan,  6  Abb.  N.  C.  343.  See  Bullymore  v.  Cooper,  46  N.  Y.  236. 
The  court  obtains  jurisdiction  in  an  action  to  partition  lands 
although  there  is  no  land  situate  in  the  county  which  the  sum- 
mons and  complaint  name  as  the  place  of  trial.  Kimball  v.  Mapes, 
19  Week.  Dig.  481,  affirmed  98  N.  Y.  629. 

The  Supreme  Court,  sitting  at  Special  Term,  has  all  the  juris- 
diction, both  legal  and  equitable,  of  the  Court  of  Chancery  and 
the  former  Supreme  Court  in  proceedings  for  partition,  and  is  to 
conduct  the  same  in  conformity  with  the  statutes.  It  may  take 
such  action  as  the  condition  of  the  pleadings  and  issues  requires, 
and  issues  of  fact  may  be  sent  to  a  jury.  Hewlett  v.  Wood,  3 
Hun,  736,  affirmed,  62  N.  Y.  75.  The  verdict  stands  on  same 
footing  as  in  other  trials.  Clapp  v.  Bromagham,  9  Cow.  530. 
The  omission  to  require  a  bond  from  the  guardian  ad  litem,  for 
each  of  the  several  infants,  does  not  deprive  the  court  of  jurisdic- 
tion. Reed  v.  Reed,  13  Civ.  Pro.  R.  109.  The  Supreme  Court 
has  jurisdiction,  in  law  and  equity,  and  has  jurisdiction  of  all 
actions  of  partition.  It  is  its  province  to  decide  whether,  in  any 
given  case,  to  award  a  partition  or  a  sale,  and  if  its  decision  is 
erroneous,  the  remedy  is  by  appeal.  Clemens  v.  Clemens,  ■^'j 
N.  Y.  59.  The  Supreme  Court  has  jurisdiction  in  partition  as  in 
proceedings  quasi  in  rem.,  i.  e.,  general  jurisdiction  over  the  sub- 
ject matter  of  the  action.  Fahey  v.  Jenkins,  73  N.  Y.  355. 
After  sale  in  partition,  the  court  has  jurisdiction,  upon  a  distribu- 
tion of  the  proceeds,  to  pass  upon  the  validity  of  a  mortgage 


io6 


PARTITION. 


Art.  2.      Partition  by  Parol  and  by  Agreement. 


upon  an  undivided  share,  though  not  formally  put  in  issue  by  the 
pleadings.      Halstcadv.  Halstcad,  55  N.  Y.  442. 

By  an  agreement  not  to  question  the  jurisdiction  of  the  courts 
of  this  State  in  a  partition  suit,  some  of  the  land  being  situated 
in  other  States,  and  not  to  institute  similar  suits  in  those  States, 
on  the  performance  of  all  the  conditions  of  the  agreement  by  one 
of  the  parties,  the  other  will  be  estopped  from  denying  the  juris- 
diction of  the  courts  in  this  State  and  be  precluded  from  bring- 
ing similar  actions  in  other  States.  He  will  not  be  heard  to  say 
that  because  certain  other  parties  are  not  parties  to  this  agree- 
ment that  the  provisions  therein  cannot  be  carried  into  effect. 
Bowen  v.Durant,  43  Hun,  248,  6  St.  Rep.  535.  A  suit  in  parti- 
tion is  a  suit  in  rem.  Van  Orman  v.  Phillips,  9  Barb.  500 ;  Cor- 
nithew.  Griffing,  21  Barb.  9.  For  the  history  of  legislation  on 
the  subject  in  this  State,  see  Mead  v.  Mitchell,  5  Abb.  92,  and 
s.  c.  17  N.  Y.  210. 

When  husband  and  wife  were  joint  owners  and  the  grantee  of 
the  husband  brought  partition  but  did  not  make  the  wife  a  party, 
it  was  held  the  court  did  not  acquire  jurisdiction  and  that  the 
judgment  was  a  nullity.      G Conor  v.  McMahon,  7  Supp.  225. 

As  to  what  facts  give  jurisdiction  in  an  action  of  partition  and 
when  county  court  has  jurisdiction,  see  Bell  v.  Gittere,  30  St. 
Rep.  219. 


ARTICLE  II. 
Partition  by  Parol  and  by  Agreement. 

Sub.  1.  Partition  by  parol. 

2.  Partition  by  agreement.     §§  1 590-1 593. 


1590-1593- 


Sub.  1.   Partition  by  Parol. 

A  parol  partition  carried  into  effect  by  possession  taken  under 
it,  will  be  sufficient  to  sever  the  premises.  Jackson  v.  Harder,  4 
Johns.  212;  Mount  v.  Morton,  20  Barb.  123;  Jackson  v.  Vosbiirgh, 
9  Johns.  276;  Byerss  v.  Wheeler,  25  Wend.  434.  And  partition 
by  parol  binds  the  heirs  of  each  tenant.  Wood  v.  Fleet,  36  N.  Y. 
499. 

Where  the  grantee  in  a  deed  is  entitled  to  certain  lands  to  be 
located,  although  he  is  tenant  in  common  until  such  location,  the 
location  in  conformity  with  the  deed  completes  title  to  the  lands 
selected.      Jackson  w.  Livingston,  7  Wend.  136;  Cor  bin  v.  Jackson, 


PARTITION.  107 


Art.  2.     Partition  by  Parol  and  by  Agreement. 


14  Wend.  625.  A  parol  partition  can  only  give  to  each  the 
vested  and  contingent  interests  the  co-tenants  then  have,  a  subse- 
quently acquired  interest  is  not  affected  by  it.  Carpenter  v. 
SchermcrJiorii,  2  Barb.  Ch.  322.  Where  the  husband  perfects  a 
voluntary  partition,  dower  attaches  to  his  share  and  the  others  are 
released.  Jackson  v.  Edwards.  22  Wend.  512;  Wilkinson  v. 
Parish,  3  Paige,  658. 

As  to  when  an  agreement  to  partition  lands  in  another  State 
will  estop  a  party  from  denying  the  jurisdiction  of  the  courts  of 
this  State,  see  Bowen  v.  Durant,  43   Hun,  248. 

It  seems  a  parol  partition  may  be  made  provided  each  party 
takes  and  retains  exclusive  possession  of  the  portion  allotted  to 
him  ;  the  parol  agreement  alone  cannot  terminate  the  unity  of  pos- 
session ;  a  right  in  the  nature  of  an  easement  cannot  be  so  cre- 
ated.     Taylor  v.  Millard,  118  N.  Y.  244. 

Sub.  2.   Partition  by  Agreement.     §§  1590,  1591,  1592,  1593. 

§  1590.  [Am'd,  1895.]  Partition  by  guardian  cf  infant,  committee  of  lunatic, 
etc. 

Where  an  infant,  idiot,  lunatic,  or  habitual  drunkard,  holds  real  property,  in 
joint  tenancy  or  in  common,  the  general  guardian  of  the  infant,  or  the  commit- 
tee of  the  idiot,  lunatic,  or  habitual  drunkard,  may  apply  to  the  supreme  court 
or  to  the  county  court  of  the  county,  wherein  the  real  property  is  situated,  for 
authority  to  agree  to  a  partition  of  the  real  property. 

§  1591.  Contents  of  petition. 

Such  an  application  must  be  by  a  petition,  which  must  describe  the  real  prop- 
erty proposed  and  to  be  partitioned;  must  state  the  rights  and  interests  of  the 
several  owners  thereof;  must  specify  the  particular  partition  proposed  to  be 
made;  and  must  be  verified  by  affidavit.  The  court  may  order  notice  of  the 
application  to  be  given  to  such  persons  as  it  thinks  proper. 

§  1592.  [Am'd,  1886.]  Coiart  may  authorize  partition. 

If,  after  due  inquiry  into  the  merits  of  the  application,  by  a  reference  or 
otherwise,  the  court  is  of  the  opinion  that  the  interests  of  the  infant,  or  of  the 
idiot,  lunatic,  or  habitual  drunkard  will  be  promoted  by  the  partition,  it  may 
make  an  order  authorizing  the  petitioner  to  agree  to  the  partition  proposed,  and 
in  the  name  of  the  infant,  or  of  the  idiot,  lunatic,  or  habitual  drunkard,  to  exe- 
cute releases  of  his  right  and  interest  in  and  to  that  part  of  the  property  which 
falls  to  the  shares  of  the  other  joint-tenants  or  tenants  in  common.  The  court 
may,  in  its  discretion,  for  the  furtherance  of  the  interests  of  said  infant,  idiot, 
lunatic,  or  habitual  drunkard,  direct  partition  to  be  so  made  as  to  set  off  to  him 
or  them  his  or  their  share  in  common  with  any  of  the  other  owners,  provided 
the  consent  in  writing  thereto  of  such  owners  shall  be  first  obtained. 


I08  PARTITION. 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 

§  1593.   Effect  of  releases. 

Releases  so  executed  have  the  same  validity  and  effect,  as  if  they  were  exe- 
cuted by  the  person  in  whose  behalf  they  are  executed,  and  as  if  the  infant  was 
of  full  age,  or  the  idiot,  lunatic,  or  habitual  drunkard  was  of  sound  mind,  and 
competent  to  manage  his  affairs. 

Under  Chapter  472,  Laws  1880,  husband  and  wife  might  parti- 
tion lands  between  themselves  by  agreenunt,  and  such  partition 
would  bar  dower.  This  act  was  repealed  by  Chapter  272,  Laws 
1896,  Domestic  Relations  Law,  and  §  26  of  that  act  provides  that 
husband  and  wife  "  may  make  partition  or  division  of  any  real 
property  held  by  them  as  tenants  in  common,  joint  tenants,  or 
tenants  by  the  entireties." 

ARTICLE  in. 

When  Action  may  be  Brought  and  by  Whom.    §§  1532, 

1533.  1537-     Rule  65. 

Sub.  I.  When    action   may    be    brought   by  joint    tenants  or  tenants  in 
COMMON.     §  1532.     Rule  65. 

2.  When  remainderman  can  maintain  the  action.     §  1533. 

3.  When  heir  may  maintain  action.     §  1537. 

Sub.  I.  When  Action  may   be  Brought   by   Joint   Tenants  or 

Tenants  in  Common.     §  1532.     Rule  65. 

§  1532.  When  action  for  partition  may  be  brought. 

Where  two  or  more  persons  hold  and  are  in  possession  of  real  property,  as 
joint  tenants  or  as  tenants  in  common,  in  which  either  of  them  has  an  estate  of 
inheritance,  or  for  life,  or  for  years,  any  one  or  more  of  them  may  maintain  an 
action  for  the  partition  of  the  property,  according  to  the  respective  rights  of  the 
persons  interested  therein;  and  for  a  sale  thereof,  if  it  appears  that  a  partition 
thereof  cannot  be  made,  without  great  prejudice  to  the  owners. 

Rtile  65.   Partition,  to  embrace  all  lands  held  in  common — infants. 

Where  several  tracts  or  parcels  of  land,  lying  within  this  State,  are  owned  by  the 
same  persons  in  common,  no  separate  action  for  the  partition  of  a  part  thereof 
only,  shall  be  brought  without  the  consent  of  all  the  parties  interested  therein,  and, 
if  brought  without  such  consent,  the  share  of  the  plaintiff  may  be  charged  with 
the  whole  cost  of  the  proceeding.  And  when  infants  are  interested,  the  petition 
shall  state  whether  or  not  the  parties  own  any  other  lands  in  common. 

Partition  may  be  maintained  as  to  lands  in  which  the  State  has 
an  interest  under  §  6  of  Public  Lands  Law,  Chapter  1 1  General 
Laws,  and  §  273  Fish,  Game  and  Forest  Law,  Chapter  31  General 
Laws. 

All  parties  must  be  tenants  of  all  lands  to  be  divided ;  Jackson 
V.  Myers,  14  Johns.  354;  Manolt  v.  Brush,  3  Law  Bull.  66;  but 


PARTITION.  109 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 


the  omission  to  allege  that  the  parties  to  the  action  do  not  own 
any  other  lands  in  common  in  the  State,  is  not  a  ground  of 
demurrer.  It  was  not  the  object  of  the  rule  to  establish  a  rule  of 
pleading;  an  omission  to  make  averment  is  at  most  irregularity. 
Pitchardv.  Draft,  32  Hun,  417.  The  party  bringing  the  action 
must  be  in  either  actual  or  constructive  possession  of  the  lands 
sought  to  be  partitioned.  O' Dougherty  v.  Aldrich^  5  Den,  385  ; 
Howell  V.  Mills,  7  I>ans.  193;  Florence  v.  Hopkins^  46  N.  Y.  182; 
Therasso7i  v.  White,  52  How.  62;  Sullivan  v.  Sullivan,  66  N.  Y. 
37 ;  Burha7is  v.  BurJians,  2  Barb.  Ch.  398 ;  Boyd  v.  Dozvie,  65 
Barb.  237;  Brownell  v.  Browncll,  19  Wend.  367.  Ownership  in 
fee  and  a  constructive  possession,  such  as  the  law  draws  to  the 
title,  is  sufificient  to  maintain  the  action.  Wainman  v.  Hampton, 
1 10  N.  Y.  429.  Where  title  is  in  heirs,  it  authorizes  partition. 
Grant  v.  Keator,  117  N.  Y.  369. 

One  of  the  several  co-tenants  can  maintain  the  action,  although 
another  holds  adversely,  if  the  adverse  possession  has  not  run  a 
sufificient  time  to  extinguish  plaintiff's  title.  Weston  v.  Stoddard, 
137  N.  Y.  119. 

The  seizin  of  one  co-tenant,  unless  proved  to  be  adverse,  is  the 
seizin  of  all,  and  either  may  institute  proceedings  for  partition, 
although  not  personally  in  possession.  Hitchcock  v.  Skinner, 
Hoff.  Ch.  21  ;  Beebe  v.  Griffing,  14  N.  Y.  238;  Florence  v.  Hop- 
kins, 46  N.  Y.  182;  Blakcley  v.  Calder,  15  N.  Y.  617.  The  latter 
case  was,  as  stated  in  Sullivan  v.  Sullivan,  66  N.  Y.  37,  solely 
between  remaindermen.  Where  the  plaintiff  has  neither  actual 
nor  constructive  possession,  the  court  is  bound  to  notice  the 
objection  in  behalf  of  infant  parties.  Fleet  v.  Dorland,  1 1  How. 
489.  Partition  between  tenants  in  common  is  a  matter  of  right. 
Smith  V.  Smith,  10  Paige,  470.  Where  the  intestate  was  seized 
and  possessed  of  lands  which  descended  in  common,  one  of  them, 
though  not  in  possession,  can  maintain  proceedings  for  partition, 
if  the  lands  are  unoccupied.     Beebe  v.  Griffing,  14  N.  Y.  235. 

But  a  plaintiff  cannot  have  judgment  of  partition  as  to  parcels 
in  which  he  has  no  interest.  Beach  v.  The  Mayor,  45  How.  357. 
It  may  be  had  by  the  several  owners  of  property  subject  to  a 
lease,  the  owners  being  tenants  in  common,  both  of  the  rents  and 
the  reversion.  Woodworth  v.  Campbell,  5  Paige,  518.  Partition 
is  allowable  between  heirs  having  an  equitable  title.  Herbert  v. 
Smith,  6  Lans.  493.     A  tenant  for  life  or  for  years  may  have  par- 


1  lO 


PARTITION. 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 


tition.  Ackley  v.  Dygert,  33  Barb.  189;  Van  Arsdalc  v.  Drake,  2 
Barb.  600.  A  tenant  by  the  curtesy,  as  he  has  a  Hfe  estate  in  the 
lands  of  his  deceased  wife,  may  maintain  partition.  Riker  v. 
Darke,  4  Edw.  Ch.  468 ;  Sears  v.  Hycr,  i  Paige,  483 ;  Tilton  v. 
Vail,  42  Hun,  638,  53  Hun,  324;  contrary,  Reed  v.  Reed,  46  Hun, 
212;  citing  §  1538,  affirmed,  107  N.  Y.  545,  but  it  is  held  that  all 
parties  are  bound  by  an  order  confirming  a  sale  made  in  such  an 
action. 

An  infant  co-tenant  may  maintain  partition,  except  where  the 
statute  makes  especial  provision  for  his  protection  and  apply  for  a 
partition,  in  the  same  manner  that  he  might  institute  any  other 
action  to  enforce  his  rights  in  the  same  property.  Postley  v. 
Cain,  4  Sandf.  Ch.  509;  Clark  v.  Clark,  14  Abb.  299,  See  §  1534. 
But  under  the  Code,  an  infant  cannot  maintain  partition  without 
leave  of  the  court,  even  as  co-plaintiff.  Strnppman  v.  Miller,  52 
How.  211. 

A  married  woman  may  compel  her  husband  to  make  partition 
of  land  in  which  they  are  co-tenants.  Moore  v.  Moore,  47  N.  Y. 
468.  Where  suit  is  brought  by  the  committee  of  an  habitual 
drunkard  or  lunatic,  the  drunkard  or  lunatic  should  be  joined. 
Gorham  v.  Gorhavi,  3  Barb.  Ch.  24.  An  assignee  for  the  benefit 
of  creditors  may  bring  partition;  Van  Arsdale  v.  Drake,  2  Barb. 
599 ;  or  by  an  assignee  in  bankruptcy ;  Rutherford  v.  Hewey,  59 
How.  231  ;  or  by  a  devisee  of  a  life  estate.  Canfield  v.  Ford,  16 
How.  473.  An  heir  of  a  deceased  intestate  can  maintain  parti- 
tion, although  he,  in  common  with  other  heirs,  has  signed  an 
agreement  not  to  do  so;  the  agreement  is  void  for  lack  of  con- 
sideration. Elderkin  v.  Rowell,  42  How.  330.  Partition  cannot 
be  maintained  by  one  having  a  mere  future  contingent  interest  in 
an  undivided  share ;  Striker  v.  Mott,  2  Paige,  387 ;  nor  between  a 
tenant  in  fee  and  his  landlord,  though  the  tenant  has  acquired  a 
moiety  of  the  rent  and  reversion.  Lansing  v.  Pine,  4  Paige,  639. 
Lands  set  apart  for  salt  works  are  not  the  subject  of  partition  be- 
tween heirs  of  the  person  to  whom  they  were  set  apart  by  the 
State  authorities.  Neweomb  v.  Newcomb,  12  N.  Y.  603.  Where 
five  persons,  as  committee  for  a  larger  number,  took  title  to  lands, 
and  were  authorized,  by  written  agreement^to  erect  sheds  thereon 
at  joint  expense  of  subscribers,  held,  that  the  land  was  so  far  im- 
pressed with  a  trust  that  partition  could  not  be  had  between  the 
grantees.     Baldwin  v.  Humphrey,  44  N.  Y.  609. 


PARTITION.  I  [  r 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 


It  seems  that  a  receiver  appointed  in  supplementary  proceed- 
ings cannot  maintain  partition.  Miller  v.  Levy,  46  Supr.  Ct.  207  ; 
DuBois  V.  Cassidy,  75  N.  Y,  298;  Payne  v.  Becker,  87  N.  Y,  153. 
Contra,  Buelson  v.  Reeves,  2  Week.  Dig.  375.  A  trustee  with 
power  to  receive  the  rents  and  profits,  and  sell  the  lands  and 
invest  the  proceeds,  can  maintain  partition.  Gallic  v.  Eagle,  65 
Barb.  583.  Although  a  tenant  in  common  is  trustee  for  some  of 
the  other  tenants,  he  may  maintain  the  action.  Cheesman  v. 
Thorn,  i  Edw.  629. 

The  heirs  of  a  deceased  person  or,  in  case  they  have  parted 
with  their  title,  their  grantees,  are  proper  parties  for  a  suit  for  the 
partition  of  the  real  estate  of  the  deceased.  Vandcrwerker  v. 
Vandcrzverker,  7  Barb.  221.  Partition  was  decreed  where  plain- 
tiff's interest  was  as  owner  in  fee  of  an  undivided  share  of  mines 
and  minerals  on,  and  in  the  premises,  with  power  to  go  on  the 
land  and  work  such  mines,  and  defendant  was  owner  in  fee  of  the 
residue  of  the  estate  and  interest  in  the  premises.  Ca^ifield  v.  Ford, 
16  How.  473,  affirmed,  28  Barb.  336.  One.  cestui  que  trust  C3in  main- 
tain partition  against  a  trustee  who  has  purchased  the  interest  of 
the  other  cestui  que  trust.     Sterricker  v.  Dickcnsoji,  ^Bsirh.  516. 

Where  administrators  advance  from  their  funds  moneys  to  com- 
plete the  purchase  of  lands  made  by  their  intestate  and  take  title 
in  their  own  names  as  security,  an  action  for  partition  to  which 
they,  the  widow  and  heirs,  are  parties,  may  be  maintained.  Her- 
bert V.  Smith,  6  Lans.  493.  One  having  a  present  interest, /rr 
autrie  vie,  in  an  undivided  portion  of  lands,  and  a  contingent 
remainder  in  fee  in  an  undivided  part,  is  entitled  to  partition,  and 
if  actual  partition  cannot  be  had,  to  a  sale.  Brevoort  v.  Brevoort, 
70  N.  Y.  136.  A  party  seized  in  fee  may  maintain  partition, 
though  it  is  subject  to  a  right  of  possession  in  trustees  created 
under  a  will  for  the  purpose  of  executing  the  trust.  Chapman  v. 
Cowenhovcn,  7  Hun,  341.  Tenants  for  life  may  have  partition 
between  themselves,  and  all  persons  entitled  to  any  beneficial  estate 
may  be  made  parties,  and  the  judgment  is  conclusive  on  all  of 
them.  /c7/X'/;^j- V.  ivr/^^jf/,  73  N.  Y.  355.  Parties  having  no  vested 
interest  in  the  real  estate  cannot  maintain  partition.  Woodruff  w 
Cook,  47  Barb.  304.  Where  a  valid  express  trust  is  created,  and 
the  legal  title  vests  in  the  trustee,  a  partition  cannot  be  decreed. 
Morse  v.  Morse,  85  N.  Y.  53;  Davies  v.  Davics,  15  Week.  Dig. 
118,  affirmed,  92  N.  Y.  633.     A  cestui  que  trust  cannot  maintain 


I  I  2  PARTITION. 

# 

Art.  3.     When  Action  may  be  Brought  and  by  Whom. 

an  action  for  the  partition  of  land.  Harris  v.  Larkins,  22  Hun, 
488,  but  see  9  Barb.  516,  supra.  A  widow  cannot  maintain  parti- 
tion by  virtue  of  her  dower  right.  Wood  v.  Clute,  i  Sandf.  Ch. 
199;  Coles  V.  Coles,  15  Johns.  319.  But  partition  is  properly 
ordered  where  the  power  of  sale  in  the  executor  would  need  the 
aid  of  the  court  to  fix  the  time  when  it  could  be  had.  UnderJiill 
V.  UnderJiill,  4  St.  Rep.  858.  An  action  for  partition  of  lands, 
which  were  subject  to  a  valid  power  of  sale  in  the  executors  of  a 
will,  sustained  when  the  executors  for  more  than  twenty-five  years 
had  omitted  to  execute  the  power,  and  most  of  the  parties  inter- 
ested had  conveyed  their  title  in  the  property,  and  thus  elected 
to  dispense  with  the  power  of  sale  in  the  will.  Purdy  v.  Wright, 
44  Hun,  239,  citing  several  authorities. 

Where  husband  and  wife  are  tenants  by  the  entirety  —  citing 
Bertles  V.  Nmian,  (^2  N.  Y.  152  —  a  deed  executed  by  the  wife 
conveys  no  title,  and  her  grantee  cannot  maintain  partition. 
Zoriitlein  v.  Brozvu,  100  N.  Y.  12 ;  same  rule,  Miller  v.  Miller,  9 
Abb.(  N.  S.)  144.  Where  the  parties  own  separate  parcels,  and 
are  not  in  possession,  a  partition  cannot  be  had.  Danvers  v. 
Doherty,  14  Abb.  106.  It  was  held  that  the  statute  prohibits 
partition  where  the  provisions  of  a  will  prevent  the  lands  of  in- 
fants from  being  sold,  and  where  a  partition  would  defeat  the 
instrument.  Midler  v.  Striippmann,  55  How.  521.  The  provi- 
sion of  the  statute  referred  to  in  that  decision  was  repealed  by 
chapter  245,  Laws  1880;  by  §  2357  the  limitation  is  only  applied 
to  sales  of  infant's  real  estate  by  order  of  the  court.  Where 
grantees  have  contracted  to  sell  again  under  a  valid  contract,  they 
are  no  longer  tenants  in  common  so  that  either  can  compel  a  parti- 
tion. Baldwin  v.  Hiuiiphrey,  44  N.  Y.  609.  If  the  personal 
property  of  decedent  appears  to  be  insufficient  to  pay  his  debts, 
a  decree  of  sale  will  not  be  granted  in  partition.  Matthews  v. 
Matthews,  i  Edw.  Ch.  565,  applied  in  FoJida  v.  Chapman,  23 
Hun,  119;  said  to  be  overruled  by  later  cases  on  another  point; 
Abbott's  Cases  criticized,  page  482.  It  was  held  before  the  pres- 
ent Code  —  see  Van  Sehnyver  v.  Mulford,  59  N.  Y.  426  —  that 
adverse  possession  barred  an  action  of  partition.  But  see  §§  1537 
and  1543.  A  tenant  for  life  may  not  maintain  partition,  because 
not  a  joint  tenant  nor  tenant  in  common  with  a  remainderman, 
but  a  decree  in  such  an  action  is  not  void.  Cromwell  v.  Hull,  97 
N.  Y.  209. 


PARlSirFION.  113 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 

Where  it  appeared  that  plaintiff  and  some  of  the  defendants  in 
partition  were  aliens,  who  had  not  declared  their  intentions  to 
become  citizens,  held,  that  this  did  not  prevent  the  maintenance 
of  the  action,  but  that  the  State  would  be  a  necessary  party. 
Nolan  V.  Command,  1 1  Civ.  Pro.  R.  295. 

Present  partition  and  sale  cannot  be  compelled  by  the  remain- 
derman during  the  life  of  the  life  tenant  without  his  consent. 
llugJics  V.  Hughes,  2  Civ.  Pro.  R.  139. 

A  conveyance  by  a  trustee  to  a  cestui  que  trust  which  does  not 
extinguish  the  trust,  gives  the  latter  no  status  to  maintain  parti- 
tion.     Thebaud  v.  ScJiermerhorn,  10  Abb.  N.  C.  72. 

Partition  cannot  be  had  where  the  parties  own  separate  parcels 
and  are  not  in  possession  of  any  portion  of  the  land,  either  as 
joint  tenants  or  tenants  in  common.     Boyd  v.  Dowie,  65  Barb. 

237- 

Nor  between  husband  and  wife  of  land  conveyed  to  them,  their 

heirs  and  assigns,  by  a  deed  not  indicating  that  they  are  to  hold, 

as  joint  tenants  or  tenants  in  common,  or  have  a  several  interest, 

because  the  survivor  takes  the  whole.     Miller  v.  Miller,  9  Abb. 

(N.  S.)  444. 

An  action  of  partition  cannot  be  maintained  as  to  a  parcel  of 
land  as  to  which  there  are  no  undivided  interests,  and  the  court 
may  dismiss  an  action  as  to  such  parcel  and  continue  it  as  to 
others.      Vari  Sehaack  v.  Saunders,  24  Week.  Dig.  225. 

An  action  may  be  maintained  by  one  tenant  in  common  of  a 
leasehold  estate,  for  the  partition  thereof,  and  where  it  appears 
that  at  the  time  of  trial,  the  estate  for  years  has  terminated, 
although  no  sale  can  be  then  directed,  the  action  may  be  continued 
for  an  accounting  for  rents  and  profits  received  by  defendant  who 
has  been  in  possession.  Walther  v.  Regnault,  56  Hun,  560 ;  S,  C. 
31  St.  Rep.  756,  9  N.  Y.  Supp.  849. 

The  action  may  be  maintained  between  husband  and  wife  as 
joint  tenants  where  the  deed  under  which  they  hold  was  made 
subsequent  to  chapter  472,  Laws  of  1880,  and  expressly  conveys 
the  land  to  them  as  joint  tenants.     Wursv.  Wurz,  27  Abb.  N.  C.  58. 

Tenants  in  common  are  constructively  in  possession  and  when 
one  of  several  is  in  actual  possession,  his  possession  will,  in  the 
absence  of  any  act  of  ouster  on  his  part,  inure  to  the  benefit  of  all, 
and  any  one  of  them  can  maintain  a  suit  for  partition,  Waimnan 
V.  Hampton,  20  Week.  Dig.  68. 
[Special  Actions  —  8.] 


I  14  PARTITION. 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 

Adverse  possession,  to  be  effectual  as  such,  must  be  open  and 
unequivocal  and  so  notoriously  hostile  as  to  be  productive  of 
ouster  of  the  co-tenants,  before  they  are  denied  the  right  of  action 
for  partition,  and  put  to  that  of  ejectment.  Hulse  v.  Hiilse,  23 
St.  Rep.  123;  s.  c.  17  Civ.  Pro.  R.  92,  5  N.  Y.  Supp.  747. 

An  alien  heir-at-law  holding  as  tenant  in  common  may  main- 
tain the  action.     Nolan  v.  Command,  11  Civ.  Pro.  R.  295. 

Testator  by  his  will  gave  his  real  estate  to  his  executors  in  trust 
to  sell  and  divide  the  proceeds  into  equal  shares  and  apply  the 
income  to  the  use  of  his  several  children  during  minority  and  to 
pay  the  principal  to  them  respectively  on  coming  of  age.  By  a 
codicil  he  revoked  the  power  of  sale,  directed  the  lands  to  be 
held  upon  the  same  trust  as  the  proceeds  of  sale  under  the  will 
and  gave  the  executors  power  to  partition  and  allot  to  any  child 
his  share  on  coming  of  age.  Held,  that  this  did  not  authorize  the 
executors  to  sell  the  realty  in  case  an  actual  partition  could  not 
be  made,  nor  could  a  sale  be  made  in  a  partition  action  during 
the  minority  of  any  of  the  children.  O' Donoghuc  v.  Boies,  92 
Hun,  3,  37  N.  Y.  Supp.  961,  73  St.  Rep.  10. 

In  Tilton  v.  Vail,  53  Hun,  324;  S.  C.  17  Civ.  Pro.  R.  194,  it 
was  held  that  a  tenant  by  curtesy  was  in  possession  of  the 
property  and  a  tenant  in  common.  That  as  such  he  was  entitled 
to  maintain  the  action  with  the  same  force  and  effect  as  though 
he  owned  the  fee  of  the  property.  This  rule  was  held  to  be 
applicable  only  where  the  tenancy  by  curtesy  was  of  a  part  of  the 
property  and  not  to  relate  to  the  case  where  the  tenant  by  cur- 
tesy was  such  of  the  whole  estate  and  his  possession  exclusive, 
distinguishing  Reed  v.  Reed,  46  Hun,  212,  afifirmed,  107  N.  Y. 
545 ;  see  Riker  v.  Darke,  4  Edw.  Ch.  668 ;  Seares  v.  Hyer^  i 
Paige,  483. 

The  appeal  from  the  decision  in  Tilton  v.  Vail^  53  Hun, 324,  supra^ 
was  dismissed  (117  N.  Y.  520),  upon  the  ground  that  the  Court  of 
Appeals  had  no  jurisdiction  to  review  an  interlocutory  judgment. 
This  case  was  first  before  the  court  in  42  Hun,  638,  on  an  appeal 
from  an  order  refusing  to  grant  a  reference  to  take  proof  of  title, 
which  order  was  reversed  upon  the  merits,  it  being  held  that  par- 
tition could  be  maintained.  That  decision  was  appealed  from 
and  affirmed,  no  N.  Y.  681,  it  thus  coming  back  to  a  rehearing 
and  the  appeal,  disposed  of  in  53  Hun,  was  then  taken. 

It  seems  that  if  a  person  having  the  present  estate   brings  an 


PARTITION.  115 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 

action  for  partition  against  those  having  only  a  vested  title  in 
remainder  and  prosecutes  it  to  judgment,  it  is  within  the  jurisdic- 
tion of  the  court,  and  the  judgment  and  execution  cannot  be 
questioned  collaterally  but  will  be  deemed  conclusive  upon  the 
parties.  While  section  1533  did  not  contemplate  making  the  life 
tenant  a  necessary  party  to  the  action,  the  right  to  make  him  a 
party  defendant  is  given  by  section  1532.  Prior  v.  Prior,  15  Civ. 
Pro.  436. 

The  existence  of  a  power  of  sale  should  not  prevent  partition 
where  it  is  a  mere  power  and  entirely  discretionary  as  to  time 
of  execution.     Duffy  v.  Duffy,  50  Hun,  266. 

The  action  of  partition  cannot  be  made  to  substitute  for  eject- 
ment or  for  an  action  to  establish  the  title  of  adverse  claimants, 
and  possession  actual  or  constructive  is  essential  to  its  mainte- 
nance.    Haskell  \.  Queen,  50  St.  Rep.  414,  21  Supp.  357. 

It  was  held  that  the  action  would  not  lie  where  it  appeared 
plaintiff's  mother  had  devised  the  property  in  trust  and  out  of 
the  rents  and  profits  had  bequeathed  a  certain  sum  to  the  plain- 
tiff.    Donnelly  v.  Donnelly,  50  St.  Rep.  250,  21  Supp.  684. 

Or  where  it  appeared  that  a  grant  had  been  made  by  the  ances- 
tor to  plaintiff's  wife  upon  an  agreement  that  the  conveyance 
should  be  accepted  as  an  advancement  and  extinguishment  of 
any  claim  by  plaintiff  as  heir.  Palmer  v.  Culbertson,  48  St.  Rep. 
505,  20  Supp.  391. 

A  joint  tenant  may  maintain  partition.  Baldwin  v.  Baldwin, 
74  Hun,  415,  57  St.  Rep.  207,  23  Civ.  Pro.  R.  268,  26  Supp.  579. 

Where  a  wife  holds  as  joint  tenant  with  her  husband  and  not 
as  tenant  by  the  entirety,  the  action  of  partition  can  be  main- 
tained by  a  party  acquiring  her  interest  by  conveyance.  Joss  v. 
Fay,  129  N.  Y.  17,  distinguishing  Bertles  v.Nunan,  92  N.  Y.  152. 

Section  1532  must  be  read  as  part  of  the  article  to  which  it 
pertains  and  cannot  be  construed  so  literally  as  to  render  nuga- 
tory the  plain  purpose  of  the  provisions  with  which  it  is  associ- 
ated. What  is  meant  by  possession  is  a  present  right  to  the  pos- 
session as  distinguished  from  the  cases  in  the  next  section  where 
under  certain  circumstances  the  remainderman  may  bring  the 
action.      Weston  v.  Stoddard,  50  St.  Rep.   169,  137  N.  Y.  119. 

Where  the  plaintiff's  interest  in  the  property  is  only  a  contin- 
gent remainder  and  not  a  vested  one,  he  cannot  maintain  parti- 
tion.     Bauiiigras  v.  Baunigras,  5  Misc.  8. 


Il6  PARTITION. 

Art.  3.     When  Action  may  be  Brought  and  by  Whom. 

Where  the  power  of  sale  in  a  will  does  not  convert  the  land  into 
personalty  and  can  be  executed  by  the  executors  only  for  the 
purpose  of  administering  the  estate  committed  to  their  charge 
as  such,  and  was  a  mere  collateral  one  and  not  appurtenant  to 
any  estate  granted  to  or  trust  reposed  in  the  executors,  it  was 
held  that  it  was  not  a  bar  to  an  action  in  equity  to  effect  the  divi- 
sion of  the  real  estate.  Mcllcn  v.  Banning^  72  Hun,  176,  approved 
Palmer  v.  Marshall,  81  Hun,  15. 

Where  husband  and  wife  are  tenants  by  the  entirety,  an  action 
of  partition  cannot  be  maintained.  Banzer  v.  Banzer,  10  Misc. 
24. 

Ordinarily  land  directed  to  be  sold  by  executors  descends  to 
the  heirs  subject  to  be  defeated  by  the  execution  of  the  power, 
and  partition  cannot  be  maintained.  McGregor  v.  McGregor,  22 
Week.  Dig.  305;  Daviesv.  Davies,  15  Week.  Dig.  118. 

Where  a  testator  devised  real  estate  and  authorized  his  widow 
to  "  sell  and  dispose  of  said  estate  at  auction  and  to  convey  the 
same  with  full  power  to  execute  and  give  a  sufficient  deed  in  law 
therefor,"  the  widow  being  one  of  the  legatees  as  well  as  execu- 
trix, the  power  to  sell  did  not  prevent  the  bringing  of  an  action 
to  partition  such  real  estate  by  one  of  the  heirs-at-law,  having  an 
interest  therein.  Duffy  v.  Duffy,  50  Hun,  266;  S.  C.  3  N.  Y. 
Supp.  23,  19  St.   Rep.  228. 

The  provisions  of  §  1537  allowing  partition  by  one  claiming  to 
be  an  heir  whether  in  or  out  of  possession,  does  not  relieve  a 
plaintiff  from  the  common  law  rule  requiring  him  to  be  actually 
or  constructively  in  possession.  Greene  v.  Greene,  23  St.  Rep. 
869;  S.  C.  7  N.  Y.  Supp.  30. 

This  section  is  construed  in  connection  with  1533  '\n  Prior  w. 
Hall,  13  Civ.  Pro.  R.  83. 

As  to  when  a  trustee  or  cestui  que  trust  may  mamtain  parti- 
tion, see  note  on  "  Parties  in  Partition,"  28  Abb.  N.  C.  124. 

A  cestui  que  trust  cannot  maintain  an  action  of  partition  even 
though  the  trustees  were  made  parties  defendant  and  allowed  the 
judgment  to  be  taken  by  default.  Harris  v.  Larkins  22  Hun, 
488. 

A  trustee  for  an  infant  of  an  undivided  naif  of  real  estate  can- 
not divest  the  title  of  the  infant  by  partition.  Ulil  v.  Loughran, 
22  St.  Rep.  459.  affirming  17  St.  Rep.  763;  s.  c.  14  Civ.  Pro.  R. 

344- 


PARTITION.  117 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 

The  right  of  plaintiff  to  maintain  partition  was  denied  in  Wood- 
ward V.  James^  115  N.  Y.  246,  modifying  44  Hun,  95,  which 
afifirmed  16  Abb.  N.  C.  246,  where  the  executrix  took  the  whole 
estate  in  trust  to  invest,  manage  and  control  it  and  to  pay  the 
taxes,  expenses  and  interest  and  after  reserving  to  herself  annu- 
ally one-half  of  the  gross  income,  to  pay  the  balance  remaining 
from  the  other  half  to  the  remainderman,  such  trusts  continuing 
during  her  life. 

Sub.  2.  When    Remainderman   can    Maintain   the   Action. 

§  1533- 
§  1533.  [Am'd,  1887.]  Id.;  by  remaindermen. 

Where  two  or  more  persons  hold  as  joint  tenants,  or  as  tenants  in  common,  a 
vested  remainder  or  reversion,  any  one  or  more  of  them  may  maintain  an 
action  for  the  partition  of  the  real  property  to  which  it  attaches,  according  to 
their  respective  shares  therein,  subject  to  the  interest  of  the  person  holding  the 
particular  estate  therein,  but  no  sale  of  the  premises  in  such  an  action  shall  be 
made  except  by  and  with  the  consent  in  writing,  to  be  acknowledged  or  proved 
and  certified  in  like  manner  as  a  deed,  to  be  recorded  by  the  person  or  persons 
owning  and  holding  such  particular  estate  or  estates;  and  if  in  such  an  action 
it  shall  appear  in  any  stage  thereof  that  partition  or  sale  cannot  be  made  with- 
out great  prejudice  to  the  owners,  the  complaint  must  be  dismissed.  The  dis- 
missal of  the  complaint,  as  herein  provided,  shall  not  affect  the  right  of  any 
party  to  bring  a  new  action,  after  the  determination  of  such  particular  estate. 

One  of  the  owners  of  two  undivided  thirds  of  certain  real  estate 
may  maintain  an  action  for  partition,  notwithstanding  the  exist- 
ence of  a  life  estate  in  the  owner  of  the  other  third.  Mason  v. 
Mason,  Abb.  Ann.  Dig.  1886,  page  278. 

This  section  is  not  intended  to  change  the  law,  but  simply  to 
codify  it.  Present  partition  and  sale  cannot  be  compelled  by  a 
remainderman,  while  the  life  tenant  is  still  living,  without  his 
consent,  nor  can  a  sale  be  made  subject  to  the  life  estate. 
Hughes  V.  HugJics,  2  Civ.  Pro.  R.  139.  It  is  held  in  Sullivan  v. 
Sullivan,  66  N.  Y.  37,  that  although  remaindermen  and  reversion- 
ers may  be  made  defendants  in  an  action  for  partition  they  can- 
not institute  the  action,  at  least  as  against  others  not  seized  of  a 
like  estate  in  common  with  them,  and  it  is  queried  whether 
remaindermen  may  compel  partition  among  themselves,  and  the 
case  of  Blakclcy  v.  Caldcr,  15  N.  Y.  617,  is  distinguished  and 
limited,  and  Howell  v.  Mills^  56  N.  Y.  226,  is  distinguished. 

In  Brcvoort  v.  Brevoort^  70  N.  Y.  136,  it  was  held  that  the 
objection  to  partition,  by  a  remainderman  or  reversioner,  could  be 


Il8  PARTITION. 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 


taken  only  by  the  parties,  and  all  the  parties  were  concluded  by 
the  judgment,  while  Jenkins  v.  Fahcy,  73  N.  Y.  355,  holds  that 
tenants  for  life  may  make  remaindermen  parties  in  partition  be- 
tween themselves.  See  Chism  v.  KcitJi,  i  Hun,  589.  The  cases 
of  Brownell  v.  Brozvncll,  19  Wend.  367;  Burhans  v.  Bnrhans,  2 
Barb.  Ch.  398 ;  Fleet  v.  Dorlanei,  1 1  How.  489,  hold  remainder- 
men cannot  maintain  the  action.  The  cases  above,  together  with 
Morse  v.  Morse,  85  N.  Y.  57,  are  cited  in  Hughes  v.  Hughes,  63 
How.  408,  affirmed,  30  Hun,  349,  and  it  is  there  held  that  a 
remainderman  cannot  compel  present  partition  and  sale  of  the 
real  estate  while  the  life  tenant  is  still  living,  without  his  consent ; 
to  entitle  a  remainderman  to  the  remedy,  there  must  be  a  present 
estate  in  possession,  and  where  the  estate  in  possession  is  with 
the  tenant  for  life,  it  cannot  be  disturbed  by  one  who  is  entitled 
to  possession  only  on  the  death  of  the  present  possessor.  An 
action  will  not  lie  by  a  remainderman  under  a  will  for  a  partition 
of  lands  which  are  subject  to  a  power  of  sale  in  executors.  Me- 
Gregor  v.  McGregor,  22  Week.  Dig.  305. 

Query,  whether  a  sale  in  partition  at  suit  of  remainderman  can 
be  sustained  where  an  infant  is  interested.  Prior  v.  Prior,  41 
Hun,  613.  Under  section  1533,  so  soon  as  it  appears  that  an 
actual  partition  of  the  lands  in  question  cannot  be  made  without 
greater  prejudice  to  the  owners,  the  court  has  no  power  except  to 
direct  that  the  complaint  be  dismissed.  It  cannot  direct  that  the 
property  be  sold.      Schcu  v.  Lehning,  31  Hun,  183. 

But  a  complaint  is  not  demurrable  which  asked  for  a  partition 
or  sale  if  it  does  not  appear  on  its  face  that  an  actual  partition 
cannot  be  had.      Diehl  v.  Lambart,  9  Civ.  Pro.  R.  269. 

Prior  to  the  amendment  to  the  Code  in  1887,  an  action  of  parti- 
tion could  not  be  maintained  by  a  remainderman  or  reversioner 
where  their  interest  was  subject  to  that  of  one  holding  a  particu- 
lar estate  and  an  actual  partition  could  not  be  made,  and  the 
complaint  must  be  dismissed.  A  judgment  in  such  a  case  is  not 
an  irregularity  or  error  in  fact,  but  a  jurisdictional  defect,  and  the 
judgment  may  be  vacated  notwithstanding  more  than  one  year 
elapsed  between  the  time  of  entry  thereof  and  the  time  of  making 
the  motion.      Prior  v.  Hall,  13  Civ.  Pro.  R.  83. 

Section  1533  did  not  contemplate  that  the  tenant  for  life 
should  be  a  necessar>'  party  to  the  action,  but  the  right  to  make 
him    the    party   defendant    in    such    a    case    is    given   by  §  1532 


PARTITION.  1 19 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 

Prior  V.  Prior.  49  Hun,  502;  S.  C.  15  Civ.  Pro.  R.  436,  18  St, 
Rep.  566, 

Where  the  property  consists  of  one  house  and  lot  which  is  in- 
capable of  actual  partition  between  the  claimants,  no  sale  can  be 
ordered  without  the  written  consent  of  the  life  tenant.  Heminje 
V.  Meinen,  20  Supp.  619,  citin<j  Sullivan  v.  Sullivan^  66  N.  Y.  37; 
Hughes  V.  Hughes.  11  Abb.  N.  C.  37,  afifirming  30  Hun,  349; 
Woodward  v.  James^  11 5  N.  Y.  346 ;  Schcu  v.  Lclming^  3 1  Hun,  1 83. 

A  conveyance  by  a  trustee  to  a  cestui  que  trust  which  does  not 
extinguish  the  trust,  gives  the  latter  no  status  to  maintain  parti- 
tion,     Thebaud  V.  Schermerhorn,  10  Abb.  N.  C.  72. 

Where  there  is  a  valid  express  trust  covering  the  whole  prop- 
erty, though  one  for  life,  partition  asked  by  a  remainderman  may 
be  refused.  Woodivard  v.  James,  115  N.  Y.  346,  modifying  44 
Hun,  95,  which  affirmed  16  Abb.  N.  C.  246. 

Where  a  will  devised  land  to  testator's  son  during  his  life,  and 
in  case  he  should  have  a  child  living  at  his  death,  to  such  child, 
their  heirs  and  assigns,  one  of  the  children  of  the  son  during  the 
latter's  life  conveyed  all  his  right,  title  and  interest  in  the  land,  it 
was  held  that  this  was  a  contingent  remainder  which  was  alienable 
that  the  interest  of  the  child  who  made  the  conveyance  passed 
thereunder  and  he  could  not  after  his  father's  death  maintain  an 
action  of  partition.  Pickert  v.  Windecker^  73  Hun,  476,  56  St. 
Rep.  12,  26  Supp.  437. 

The  existence  of  a  life  estate  in  possession  of  all  the  property, 
prevents  partition  among  the  remaindermen.  Hughes  v.  Hughes, 
II  Abb.  N.  C.  37,  affirmed,  30  Hun,  349;  Sullivan  v.  Sullivan  66 
N.  Y.  37,  reversing  4  Hun,  198.  But  remaindermen  may  have 
partition  between  themselves  notwithstanding  a  void  devise  in 
remainder  limited  on  a  valid  life  estate,  by  joining  the  devisees. 
Van  Brunt  v.  Van  Brunt,  14  St.  Rep.  887,  affirmed  on  another 
point,  III  N.  Y.  178. 

Where  a  testator  has  converted  his  real  estate  into  personalty 
and  vested  the  legal  estate  in  trustees  during  the  life-time  of  his 
widow,  until  her  death  a  disposition  of  the  property  would  not  be 
decreed  and  the  action  for  partition  cannot  be  maintained  by  a  re- 
mainderman.     Underwood  v.   Curtis,  127  N.  Y.  523,  40  St.  Rep. 

255- 

In  an  action  by  a  remainderman  there  may  be  no  sale,  but 
where  actual  partition  cannot  be  had  the  complaint  must  be  dis- 


I20  PARTITION. 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 

missed.      Leavy  v.  Leavy^  79  Hun,  290,  60  St.  Rep.  561,  29  Supp. 
384,  31  Abb.  N.  C.  468. 

Sub.  3.  When  Heir  may  Maintain  Action.     §  1537. 

§  1537.  When  heir  may  maintain  action  for  partition  of  devised  property. 

A  person  claiming  to  be  entitled,  as  a  joint  tenant  or  a  tenant  in  common,  by 
reason  of  his  being  an  heir  of  a  person  who  died,  holding  and  in  possession  of 
real  property,  may  maintain  an  action  for  the  partition  thereof,  whether  he  is 
in  or  out  of  possession,  notwithstanding  an  apparent  devise  thereof  to  another 
by  the  decedent,  and  possession  under  such  a  devise.  But  in  such  an  action, 
the  plaintiff  must  allege  and  establish  that  the  apparent  devise  is  void. 

Section  1537  is  from  chapter  238,  Laws  1853,  under  which  the 
statute  has  been  construed. 

In  Voessingv.  Voessing,  12  Hun,  678,  it  is  said  that  the  plain- 
tiffs could  allege  an  apparent  devise  in  their  father's  will  which 
was  void,  and  an  adjudication  to  that  effect.  It  was  proper  that 
they  should  allege  and  prove  that  fact,  it  being  essential  to  the 
plaintiff's  case  to  allege  the  devise  and  its  invalidity.  The  same 
rule  is  held  in  McKeon  v.  Kearney,  57  How.  349,  which  also  holds 
it  is  only  where  the  whole  will  or  entire  devise  is  attacked  for 
invalidity  that  a  suit  or  proceeding  can  be  instituted  under  this 
statute.  Such  an  action  can  be  maintained,  notwithstanding  an 
adverse  possession,  and  the  case  may  be  tried  at  Special  Term 
with  the  aid  of  a  jury  to  pass  on  the  disputed  questions  of  fact. 
Hewlett  V.  Wood,  62  N.  Y.  75;  Ward  v.  Ward,  23  Hun,  431; 
Wager  v.  Wager,  23  Hun,  439.  In  Hallw.  Hall,  81  N.  Y.  130,  it 
was  held  that  an  alien  could  not  take  by  devise,  the  action  being 
brought,  as  appears  by  the  statement  of  facts  under  this  provi- 
sion of  the  statute,  to  partition  lands  where  the  devise  was  to 
aliens.  A  plaintiff,  an  heir-at-law  of  decedent,  has  a  right  to  show 
in  an  action  for  partition,  having  made  the  necessary  allegation, 
that  a  devise  to  an  executor  named  in  a  will  is  void,  and  that  the 
executor  has  no  power  of  sale,  and  that,  therefore,  the  title  to  the 
real  estate  left  by  the  decedent,  descended  to  his  heirs-at-law 
unaffected  by  such  attempted  devise.  It  is  no  answer  that  the 
defendant  objecting  does  not  claim  the  whole  of  the  real  estate 
devised.      Henderson  v.  Henderson,  44  Hun,  420. 

By  the  adoption  of  §  1537  the  old  rule  denying  to  a  party  par- 
tition of  lands  held  adversely  was  intentionally  changed  where 
such  adverse  holding  and  possession  is  under  a  devise  valid  on  its 
face,  but  in  fact  void,  and  this  purpose  ought  not  to  be  and  can- 


PARTITION.  121 


Art.  3.     When  Action  may  be  Brought  and  by  Whom. 

not  be  thwarted  by  a  transfer  of  the  devisee's  apparent  title  to  a 
party  whose  title  and  possession  is  no  other  or  better  than  that  of 
the  devisee.      Malmiey  v.  Cronin,  44  Hun,  270. 

The  complaint  in  an  action  for  partition  brought  by  an  heir-at- 
law  of  a  testator,  under  §  1537  of  the  Code,  cannot  be  amended 
by  adding  an  averment  that  the  devisee  caused  the  death  of  the 
testator,  as  such  averment  does  not  tend  to  show  that  the  appa- 
rent devise  is  void.  Ellerson  v.  Westcott,  148  N.  Y.  149,  42 
N.  E.  Rep.  540,  reversing  88  Hun,  389,  34  N.  Y.  Supp.  813,  68 
St.  Rep.  751. 

Where  real  estate  vested  in  the  testator's  children,  at  his  death, 
subject  to  the  power  given  the  executor  to  partition,  it  was  held 
that  such  children  could  not  maintain  an  action  for  partition  pend- 
ing the  existence  of  the  right  in  the  executor  to  exercise  his  powers. 
Henderson  v.  Henderson,  113  N.  Y.  i,  reversing  46  Hun,  509. 

In  Greeiie  v.  Greene,  125  N.  Y.  506,  it  was  held  in  an  action 
under  §  1537,  that  the  inhibition  against  a  partition  or  division 
for  six  years  was  void  and  that  the  devise  vested  in  the  sons  of 
the  testator  an  estate  in  fee  and  plaintiff  had  no  interest  in  the 
lands  sought  to  be  partitioned. 

In  an  action  under  this  section,  the  plaintiff  must  allege  and 
establish  that  the  apparent  devise  is  void.  Bozuen  v.  Sweeny,  44 
St.  Rep.  182. 

It  was  held  in  Hemnije  v.  Meinen,  20  Supp.  619,  that  an  action 
under  this  section  could  not  be  maintained  where  the  defendants 
were  not  in  either  actual  or  constructive  possession  under  the 
devise,  citing  Greene  v.  Greene,  7  Supp.  30. 

Although  a  will  is  admitted  to  probate  after  the  trial  of  issues 
before  a  jury  which  found  in  favor  of  its  validity,  upon  which  an 
adjudication  was  entered  by  the  Surrogate's  Court  decreeing  the 
probate  to  be  valid,  yet  an  heir  can,  notwithstanding  such  decree, 
retry  the  question  of  its  validity  as  to  the  realty  and  obtain  a 
verdict  and  judgment  that  the  will  is  invalid.  Bozven  v.  Sweeny^ 
89  Hun,  359. 

A  gift  of  the  residuary  estate  to  executors  to  pay  half  the 
income  to  testator's  sons  during  the  life  of  each  respectively  and 
at  the  end  of  the  life  estate  one-half  of  the  estate  to  the  issue  then 
living  of  the  deceased  son,  gives  the  sons  no  legal  title  to  support 
an  action  for  partition.  McLean  v.  McLean,  50  St.  Rep.  509,  21 
Supp.  326. 


122  PARTITION. 


Art.  4.     Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 


Where  a  testator  directed  his  executors  to  sell  his  real  estate 
and  distribute  the  proceeds  among  persons  named  in  his  will, 
such  real  estate  is  deemed  converted  into  personalty,  and  parti- 
tion cannot  be  had.     Fritz  v.  Fritz,  43  St.  Rep.  755,  \^  Supp. 

801. 

Under  §  1537  plaintiff  is  permitted  to  bring  into  such  action  a 
cause  of  action  to  set  aside  the  will  of  the  former  owner  of  the 
property  sought  to  be  partitioned,  and  he  can  unite  with  it  other 
causes  of  action  arising  out  of  the  same  transactions  when  the 
acts  which  give  rise  to  such  other  causes  oi\  action  create  liens 
upon  real  estate  if  they  are  not  declared  invalid.  Best  v.  Zch,  82 
Hun,  232,  affirmed,  146  N.  Y.  363. 


ARTICLE  IV. 

Restrictions  and   Regulations  as  to   Partition  by  an 

Infant.     §§  i 534.  i 535,  1536. 

Sub.  I.  Authority  NECESSARY  FROM  THE  surrogate's  COURT.     §  i534- 

2.  Guardian  ad  litem  in  partition.     §  1535. 

3.  Security  required  from  guardian  ad  litem.     §  1536. 

Sub.  I.  Authority    Necessary  from  the    Surrogate's   Court. 

§  1534- 

^1534.  Id. ;  by  an  infant. 

An  action  for  the  partition  of  real  property  shall  not  be  brought  by  an  infant, 
except  by  the  written  authority  of  the  surrogate  of  the  county  in  which  the 
property,  or  a  part  thereof,  is  situated.  The  authority  shall  not  be  given,  unless 
the  surrogate  is  satisfied,  by  affidavit  or  other  competent  evidence,  that  the  in- 
terests of  the  infant  will  be  promoted  by  bringing  the  action.  A  judgment  for 
a  partition  or  sale  shall  not  be  rendered  in  such  an  action,  unless  the  court  is 
satisfied  that  the  interests  of  the  infant  will  be  promoted  thereby,  and  that  fact 
is  expressly  recited  in  the  judgment. 

The  authority  to  allow  the  action  to  be  brought  was,  prior  to 
the  present  Code,  lodged  with  the  Supreme  Court.  The  codifiers 
state  that  it  was  given  to  the  surrogate  as  the  proper  officer,  and 
for  the  reason  that  it  is  also  the  duty  of  the  court  in  which  the 
action  is  brought  to  exercise  a  supervision  over  the  interests  of 
infants,  and  an  additional  safeguard  is  thus  created.  It  must 
appear  that  the  interests  of  the  infant  require  that  partition 
should  be  made  or  a  sale  had,  or  the  order  will  not  be  made ; 
Lansing   v.  Gulick,  26  How.  250 ;  and  a  failure  to  comply  with 


PARTITION.  123 


An.  4.     Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 


this  requirement  is  radical  and  fatal.      Clark  v.  Clark,   21    How. 
479;  Struppnian  v.  Mullcr,   52  How.  211. 

The  application  should  be  made  by  petition,  and  is  on  behalf 
of  the  infant  by  his  general  guardian,  if  he  has  one,  and  if  not.  bv 
a  relative  if  the  infant  is  under  fourteen,  or  by  the  infant  himself 
if  over  fourteen.  It  may  be  ex  parte,  but  must  be  verified.  It 
need  not  be  entitled,  and  should  set  forth  the  facts  showing  that 
the  infant  is  entitled  to  a  partition  and  generally  the  reasons  why 
he  applies  for  leave  to  bring  suit,  and  whether  the  parties  own 
any  other  lands  in  common.  The  court,  on  being  satisfied  that 
the  interests  of  the  infant  require  a  partition,  will  grant  the  order. 
Van  Santvoord's  Equity  Practice,  vol.  2,  p.  9. 

Where  the  petition  was  made  to  the  Supreme  Court  and  was 
sent  to  a  referee,  it  was  held  that  his  report  should  show  the  facts 
on  which  he  based  his  conclusion,  that  the  court  might  judge  of 
the  necessity  for  partition.  Matter  of  Marsac,  15  How.  383. 
The  conditions  upon  which  suit  may  be  brought  by  the  infant 
must  be  strictly  complied  with ;  the  mere  joinder  with  an  infant 
as  a  co-plaintiff  of  a  tenant  in  common  will  not  dispense  with  the 
necessity  on  the  part  of  the  infant  of  obtaining  the  authority  to 
.sue,  which  is  a  condition  precedent  to  maintaining  the  action  or 
authorizing  a  decree  of  sale.  Matter  of  Marsac,  i'!^  How.  383; 
Struppman  v.  Midler,  52  How.  211  ;  In  re  Stratton,  i  Johns. 
509;  In  re  Sharp,  10  Johns.  486;  Clark  v.  Clark,  21  How.  479; 
Lansing  \.  Gnlick,  26  How.  250. 

Attention  is  called  to  the  clause  of  Rule  65,  supra,  requiring 
the  petition  to  state  whether  or  not  the  parties  own  any  other  lands 
in  common  and  the  precedent  should  be  varied  accordingly.  An 
omission  to  comply  with  the  rule  is,  however,  only  an  irregularity 
and  not  ground  for  demurrer.     Pritchard  v.  Dratt,  32   Hun,  417. 

Precedent  for  Affidavit  on  Application  for  Leave  for  Infant  to 

Bring  Suit. 

State  of  New  York, 


County  of   Ulster,        ' 

Charles  D.  Bruyn  and  James  V.  Bruyn,  both  of  the  city  of  Kings- 
ton, N.  Y.,  being  severally  duly  sworn,  say,  and  each  for  himself 
says,  that  the  said  James  V.  Bruyn  jis  an  infant  under  the  age  of 
twenty-one  years,  to-wit,  of  the  age  of  nineteen  years,  and  the  said 
Charles  D.  Bruyn  is  the  general  guardian  of  the  person  and  estate 
of  the  said   James  V.  Bruyn;  that  the  said  James  V.  Bruyn   is  the 


124 


PARTITION. 


Art.  4.     Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 

owner  as  tenant  in  common  with  Cornelius  Bruyn,  of  (here  insert 
description);  that,  in  the  opinion  of  deponents,  a  suit  should  be 
instituted  by  said  infant  for  the  partition  of  said  property,  and  that 
the  following  are  deponent's  reasons  for  such  opinion:  that  said 
property  is  worth  about  $15,000;  that  the  amount  of  annual  taxes 
thereon  are  about  $300  or  more;  that  the  gross  income  of  said  real 
estate  is  only  $125,  and  that  it  is  a  constant  expense  to  the  said 
infant,  and  he  derives  no  income  or  benefit  from  its  ownership,  and 
deponents  further  say  that  Charles  D.  Bruyn,  acting  for  said  James 
V.  Bruyn,  has  made  earnest  and  persistent  effort  with  said  Cornelius 
Bruyn  to  bring  about  an  amicable  division  of  said  real  estate,  so  that 
each  might  have  his  equitable  and  just  share  thereof,  but  without 
any  favorable  result,  and  these  deponents  are  satisfied  that  no 
friendly  division  thereof  can  be  made. 

(Jurat.)  C.   D.    BRUYN, 

JAMES  V.  BRUYN. 

Precedent  for  Order. 

ULSTER  SURROGATE'S  COURT. 


In  the  Matter  of  the  Application  of 
JAMES  V.  BRUYN,  an  Infant,  for  Leave 
TO  Bring  a  Partition  Suit  Against  his 


Co-tenant     in     Common, 
BRUYN. 


CORNELIUS 


I,  Oliver  P.  Carpenter,  surrogate  of  Ulster  county,  being  satisfied 
by  the  affidavits  of  Charles  D.  Bruyn  and  James  V.  Bruyn,  dated 
May  25,  1888,  that  James  V.  Bruyn,  who  is  an  infant  of  the  age  of 
nineteen  years,  is  the  owner  of  the  equal  undivided  one-half  of  the 
real  estate  described  in  said  affidavits,  situated  in  the  town  of  Gardi- 
ner, and  in  the  city  of  Kingston,  Ulster  county,  as  tenants  in  com- 
mon with  Cornelius  Bruyn,  and  that  the  interests  of  said  infant  will 
be  promoted  by  his  bringing  an  action  for  the  partition  of  said  prop- 
erty, do  hereby  authorize  said  James  V.  Bruyn  to  bring  said  action. 

OLIVER  P.   CARPENTER, 

Surrogate. 

Sub.  2.  Guardian  ad  litem  in  Partition.     §  1535. 

§  1535.  Guardian  ad  litem ;  how  appointed. 

A  guardian  ad  litem  for  an  infant  party,  in  an  action  for  partition,  can  be  ap- 
pointed only  by  the  court. 

See  Code,  §§  470,  471,  and  Supreme  Court  Rules  49  and  50, 
and  Jennings  v.  Jennings^  2  Abb.  6,  as  to  appointment  of  guar- 
dian ad  litem. 

The  guardian  ad  litem  can  be  appointed  only  by  the  court  and 
cannot  be  made  at  chambers.     Lyle  v.  Smithy  13  How.  104;    Va- 


I 

A; 

I 


PARTITION. 


125 


Art.  4.     Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 

rian  v.  Stevens,  2  Duer,  635.  In  the  first  judicial  district,  how- 
ever, a  chambers  order  is  regarded  as  an  order  by  the  court. 
Disbrow  v.  Folger,  5  Abb.  53.  The  general  guardian  for  the 
infant  cannot  act  without  being  appointed  guardian  ad  litem.  In 
re  Strattoti,  i  Johns.  509;  In  re  Sharp,  10  Johns.  486;  Clark  v. 
Clark,  21  How.  479;  Lansing  v.  Gulick,  26  How.  250;  Striipp- 
inan  v,  Mitllcr,  52  How.  211.  See  Rogers  v.  McLean,  34  N.  Y. 
536.  But  he  is  a  proper  person  to  make  the  application. 
Rogers  v.  McLean,  34  N.  Y.  536.  He  need  not  necessarily  be 
appointed  guardian  ad  litem.  Cook  v.  Razvdon,  6  How.  223. 
If  no  guardian  is  appointed,  the  decree  is  irregular  and  the  error 
cannot  be  excused  although  the  infant  has  come  of  age  and  ten- 
dered a  release.  Kohler  v.  Kohler,  2  Edw.  69.  But  the  want  of 
verification  to  a  petition  for  the  appointment  of  a  guardian  ad 
litem  may  be  supplied  after  judgment,  or  perhaps  dispensed  with. 
Van  Wyck  v.  Hardy,  20  How.  222,  afiirmed,  4  Ab.  Ct.  of  App. 
Dec.  496;  Rogers  v.  McLean,  ii  Abb.  44,  afifirmed,  34  N.  Y. 536. 
And  the  omission  of  the  guardian  to  file  his  answer  or  give  a 
notice  of  appearance,  will  not  affect  the  validity  if  such  answer  be 
filed  mine  pro  tunc  after  judgment,  by  order  of  the  court.  Alt- 
haiise  V.  Radde.,  3  Bosw.  410.  See  also,  Bogert  v.  Bogert,  45 
Barb.  121. 

It  is  further  held  in  the  last  case,  that  a  party  entitled  and 
intending  to  commence  an  action  of  partition  may,  before  service 
of  summons,  procure  a  guardian  for  a  minor  defendant  to  be 
appointed,  and  that  service  on  the  person  so  appointed  is  good 
service  on  the  minor.  And  in  Wood  v.  Martin,  66  Barb.  241,  it 
is  said  that  an  infant  over  fourteen  may  apply  for  the  appoint- 
ment of  a  guardian  ad  litem  before  service  of  a  summons  upon 
him,  and  that  as  to  those  under  fourteen,  an  appointment  before 
service  is,  at  most,  an  irregularity  to  which  objection  must  be 
taken  within  a  reasonable  time.  See,  however,  Wilkes  v.  Wilkes, 
I  Barb.  Ch.  72,  that  the  plaintiff  must  wait  twenty  days  after 
service  of  summons  on  infant  defendant  before  he  can  apply  for 
such  appointment.  It  is  also  held  in  Glover  v.  Haivs,  19  Abb. 
161,  note;  mGrant  v.  Van  ScJioonhoven,  9  Paige,  255,  and  Inger- 
soll  V.  Mangam,  84  N.  Y.  622,  that  a  guardian  ad  litem  for  an 
infant  defendant  cannot  be  appointed  until  after  service  of  sum- 
mons, either  personal  or  substituted,  on  him.  This  case  seems  to 
distinguish  Gotendorf  v.  Goldschmidt,  83  N.  Y.  no,  as  a  decision 


126  PARTITION. 


Art.  4.     Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 

under  the  rule  relating  to  partition  under  the  Revised  Statutes 
and  not  now  applicable.  The  statute,  as  to  partition  as  it  then 
stood,  is  discussed  in  Crogan  v.  Livingsto7i^  17  N.  Y.  218.  The 
cases  cited  and  Thistle  v.  Thistle^  66  How.  472,  seem  to  be  prac- 
tically overruled  in  higersoll  v.  Mangam,  84  N.  Y.  622,  supra^ 
under  the  present  Code.  See  also,  language  of  §  471.  The  ap- 
pointment of  guardian  is  regulated  by  §  471,  which  takes  the 
place  of  §  116    of  the  old  Code. 

As  to  appointment  of  guardian  for  infant  out  of  the  State,  see 
§  473.  If,  in  fact,  a  guardian  has  no  adverse  interest,  title  is  not 
defective,  although  that  fact  be  not  stated  in  the  petition  as  the 
rule  requires.      Disbroiv  v.  Folger,  5  Abb.  53. 

A  variance  between  the  name  of  an  infant,  as  stated  in  the 
complaint,  and  in  the  petition  for  the  appointment  of  a  guardian, 
may  be  disregarded  as  immaterial.      Varinji  v.  Stevens,  2  Duer, 

635- 

In  the  absence  of  proof  the  regularity  of  the  appointment  Oi  a 
guardian  ad  litem  will  be  presumed.     Brick's  Estate^  15  Abb.  12. 
An  infant  defendant  must  appear,  and   defend  by  a  guardian  ad 
litem— Comstock  V.  Carr,  6  Wend.  526  —  and  he  cannot  during 
infancy  waive  that  defect.     Maynard  m.  Doivner^  13  Wend.  575. 

In  view  of  the  fact  that  a  guardian  ad  litem  in  partition  as  pro- 
vided in  this  section,  can  only  be  appointed  at  a  term  of  the 
court,  it  will  be  convenient  frequently  in  bringing  an  action  where 
infants  are  parties,  to  serve  motion  papers  for  a  day  later  than 
the  expiration  of  the  time  to  answer,  for  the  appointment  of  a 
guardian  ad  litem.  In  case  application  is  made  for  a  guardian  on 
the  part  of  the  infant,  of  course  no  further  proceedings  are  to  be 
had,  but  if  no  such  application  is  made,  the  guardian  may  then 
be  appointed  upon  such  notice  on  application  to  the  court. 

Where  in  partition  proceedings,  an  infant  defendant  was  a 
resident  of  this  State,  but  was,  during  the  pendency  of  this 
action,  temporarily  residing  in  Italy,  and  the  plaintiff  in  the 
action  was  the  father  of  the  infant,  and  resided  in  this  State,  an 
order  was  made  designating  a  person  to  be  the  guardian  ad  litem 
for  said  infant,  unless  he  or  some  one  in  his  behalf  procured  such 
a  guardian  to  be  appointed  in  ten  days  after  the  service  of  the 
copy  of  the  order,  and  the  court  then  directed  that  the  service  of 
that  order  should  be  made  upon  the  plaintiff  to  the  action,  who 
was  the  father  of    the   infant.     Held,   that   such   service,   to    be 


PARTITION.  127 


Art.  4.     Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 

regular  must  be  made  upon  the  father  of  the  infant  within  thi.s 
State,  and  a  service  upon  the  father  in  Paris  would  not  be  a 
compliance  with  the  order.  Uhl  v.  Longliran^  17  St.  Rep.  763; 
S.  C.  14  Civ.  Pro.  R.  344,  affirmed,  22  St.  Rep.  459. 

There  is  no  way  in  which  an  infant  can  be  brought  into  court 
in  partition  except  by  personal  or  substituted  service,  and  until 
this  is  done  no  guardian  can  be  appointed.  Walter  v.  DeGraaf, 
19  Abb.  N.  C.  406,  but  where  infants  are  represented  by  guardian 
they  are  bound  as  much  as  adults.  Prior  v.  Prior ^  18  St.  Rep. 
566,  It  is  said  in  Weed  y.  Paine,  13  Abb.  N.  C.  200,  that  the 
court  has  power  independently  of  the  Code,  to  award  compensa- 
tion to  the  guardian  ad  litem. 

See  Moulton  v.  Moulton,  47  Hun,  606;  s.  c.  15  St.  Rep.  157,  as 
to  service  on  infant  out  of  the  State  by  publication  in  partition. 

Precedent  for  Petition  for  Appointment  of  Guardian  ad  litem 

for  Infant  Plaintiff.- 

To  the  Supreme  Court  of  the  State  of  New  York : 

The  petition  of  James  V.  Bruyn  of  the  city  of  Kingston,  N.  Y., 
respectfully  shows  that  he  is  an  infant  of  the  age  of  nineteen  years. 
That  your  petitioner  is  about  to  commence  an  action  in  the  Supreme 
Court  of  the  State  of  New  York,  against  Cornelius  Bruyn,  for  the 
partition  of  all  the  real  estate  owned  by  the  said  Cornelius  Bruyn 
and  your  petitioner  as  tenants  in  common,  which  real  estate  is  all 
situate  in  the  county  of  Ulster,  New  York. 

That  the  surrogate  of  the  county  of  Ulster  has  duly  made  an  order 
granting  your  petitioner  leave  to  bring  such  action.  And  your 
petitioner  prays  that  Charles  D.  Bruyn  of  the  city  of  Kingston, 
N.  Y.,  who  is  the  general  guardian  of  your  petitioner  and  is  a  com- 
petent and  responsible  person,  and  fully  competent  to  understand 
and  protect  the  rights  of  your  petitioner,  and  has  no  interest 
adverse  thereto,  may  be  appointed  to  prosecute  the  said  action  for 
your  petitioner,  as  his  guardian,  pursuant  to  the  statute  in  such  case 
made  and  provided. 

Dated  May,  25,  1888.  JAMES  V.   BRUYN. 

Precedent   for  Affidavit   by   Proposed  Guardian. 

Ulster  County,  ss.: 

Charles  D.  Bruyn  of  the  city  of  Kingston,  N.  Y.,  being  duly 
sworn,  says,  that  he  is  the  person  named  in  the  annexed  petition  for 
appointment  as  guardian  of  James  V.  Bruyn,  an  infant,  in  an  action 
about  to  be  commenced  by  said  James  V.  Bruyn  against  Cornelius 
Bruyn  and  others;  that  he  is  of  sufficient  ability  to  answer  to  said 
infant  for  any  damages  which  may  be  sustained  by  his  negligence  or 
misconduct  in  the  prosecution  of  said  suits,  and  is  worth  the  sum  of 


128 


PARTITION. 


Art.  4.     Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 

$10,000  over  and  above  all  debts  and  liabilities  owed  or  incurred  by 
him,  and  exclusive  of  property  exempt  from  levy  and  sale  under 
execution.  C.   D.   BRUYN. 

(Jurat.) 

Order    Appointing  Guardian  ad   Litem   for  Infant  Plaintiff. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  Court-house 
in  the  city  of  Poughkeepsie,  Dutchess  county,  N.  Y.,  this  26th 
day  of  May,  1888. 

Present  —  Hon.  J.  F.  Barnard,  Justice. 


■  1 

In  the  Matter  of  the  Petition  of  JAMES  I 

V.  BRUYN,  AN  Infant,  for  the  Appoint-  [ 

MENT  OF  A  Guardian  ad  litem. 


On  reading  and  filing  the  annexed  petition  of  James  V.  Bruyn,  for 
the  appointment  of  Charles  D.  Bruyn,  as  his  guardian  ad  litem^  and 
the  consent  of  said  Charles  D.  Bruyn,  duly  acknowledged,  and  it 
being  made  satisfactorily  to  appear  to  the  courts  that  the  said  Charles 
D.  Bruyn  is  a  competent  and  responsible  person:  Now,  on  motion 
of  C.  A.    &  E.  Fowler,  attorneys  for  said  James  V.  Bruyn, 

Ordered,  that  Charles  D.  Bruyn,  of  the  city  of  Kingston,  N.  Y., 
be  and  he  hereby  is  appointed  guardian  ad  litem  of  James  V.  Bruyn, 
infant  above  named,  and  authorized  to  prosecute  for  him,  as  such 
guardian,  the  action  mentioned  in  the  annexed  petition,  on  his  exe- 
cuting to  the  people  of  this  State,  and  duly  acknowledging  and  filing 
a  bond  in  the  penalty  of  $1,000,  with  two  sureties  conditioned  for 
the  faithful  discharge  of  the  trust  committed  to  him  as  guardian, 
and  to  render  a  just  and  true  account  of  his  guardianship  in  any 
court  or  place  when  thereunto  required. 

J.   F.   BARNARD, 

J.    S.    C. 

Precedent  for  Form  of  Notice  to  Infant  Defendant  to  have 
Guardian  ad  Litem  Appointed. 

SUPREME  COURT  — Ulster  County. 


AMASA  HUMPHREY 

agst. 

ELGIN  HORNBECK,  BIANCA  OSTER- 
HOUDT  AND  ELIAS  P.  OSTERHOUDT, 
HER  Husband,  AMELIA  HORNBECK, 
GEORGE  K.  HORNBECK,  MARY  A. 
HORNBECK,  and  Others. 


T'*?  Amelia  Hornbeck,  Mary  A.  Hornbeck  and  Geo.  K.  Hornbeck, 
infant  defendants,  who  have  no  general  or  testamentary  guardian: 
Take  notice,  that  unless  you  procure  the  appointment  of  a  guard- 
ian ad  litem,  to  appear  and  defend  this  action,  on  your  behalf,  within 


PARTITION.  129 


Art.  4.     Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 

twenty  days  after  the  personal  service  of  the  summons  in  this  action 
upon  you,  an  application  will  be  made  to  this  court  at  a  Special 
Term  thereof,  to  be  held  at  the  judge's  chambers,  in  the  city  of 
Kingston,  said  county,  on  the  29th  day  of  December,  1887,  at  the 
opening  of  the  court,  on  that  day  or  as  soon  thereafter  as  counsel 
can  be  heard,  for  an  order  appointing  some  competent  and  responsi- 
ble person  guardian  ad  litem  for  you,  and  authorizing  and  directing 
him  to  appear  and  defend  the  above  action  in  your  behalf,  or  for 
such  other  or  further  order  or  relief  as  may  be  just. 
Dated  November  19,  1887.  Yours,  etc., 

WILLIAM  D.   BRINNIER, 

Attorney  for  Plaintiff. 

Precedent  for  Order  Appointing  Guardian  for  Infant 

Defendant. 

At  a  Special  Term  of  the   Supreme  Court,  held  at  the  City  Hall  in 

the  City  of  Kingston,  on  the  29th  day  of  December,  1887. 
Present  —  Hon.  Alton  B.  Parker,  Justice. 


AMASA  HUMPHREY 
agst. 

I 

EGLIN    HORNBECK,    AURELIA    HORN-  ^ 
BECK,  MARY  A.  HORNBECK,  GEORGE 
K.  HORNBECK  and  Others. 

On  reading  and  filing  the  notice  to  appoint  guardian  ad  litem,  and 
proof  of  service  of  the  same,  and  affidavit  of  one  of  the  attorneys  of 
the  plaintiff,  verified  December  29,  1887,  showing  that  neither  of 
the  above-named  infant  defendants,  Aurelia  K.  Hornbeck,  Mary 
A.  Hornbeck  and  George  K.  Hornbeck,  had  caused  to  be  appointed 
in  this  action  a  guardian  ad  litem,  and  affidavit  of  John  G.  Van 
Etten,  about  to  be  appointed  guardian  ad  litem  of  the  above  infant 
defendants,  verified  Deccinber  29,  1887,  showing  that  he  is  qualified 
to  act  as  guardian  under  Rule  49  of  the  Supreme  Court:  Now,  on 
motion  of  William  D.  Brinnier,  the  attorney  of  the  above  plaintiff, 
it  is  ordered  that  John  G.  Van  Etten,  Esq.,  of  the  city  of  Kingston, 
an  attorney  of  this  court,  be  and  he  hereby  is  appointed  guardian 
ad  litem  of  Aurelia  Hornbeck,  Mary  A.  Hornbeck  and  George  K. 
Hornbeck,  and  authorized  to  appear  for  them  as  such  guardian, 
and,  as  the  action  is  one  for  partition  of  real  property,  it  is  further 
ordered  that  said  guardian,  before  his  appointment  shall  become 
final,  shall  execute  to  the  People  of  the  State  of  New  York,  and 
acknowledge  and  file  in  the  Ulster  county  clerk's  office,  a  bond,  with 
at  least  one  surety,  in  the  penalty  of  $200,  in  form  and  sufficiency  to 
be  approved  by  the  court,  conditioned  for  the  faithful  discharge  of 
the  trust  committed  to  him  as  such  guardian ;  that  he  will  render  a 
just  and  true  account  of  his  guardianship  in  any  court  or  place  where 
thereto  required. 

[Special  Actions  —  9.] 


130  PARTITION. 


Art.  4.     Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 

Precedent  for  Petition  by  Defendant  to  Appoint  Guardian  ad 

Litem. 

SUPREME  COURT  — Ulster  County. 


JOHN  A.  LOUTHER  and  Others 

agst. 

ELIZA  LOUTHER  and  Others. 


To  the  Supreme  Court  of  the  State  of  New  York : 

The  petition  of  Eliza  Louther,  the  mother  of  Burton  Louther,  an 
infant  under  the  age  of  fourteen  years,  respectfully  shows:  That 
the  said  Burton  Louther  was  thirteen  years  of  age  on  the  15th  day  of 
June,  1887,  and  your  petitioner  is  his  mother. 

That  an  action  has  been  commenced  in  this  court,  against  the  said 
infant,  by  John  A.  Louther  and  Jennie,  his  wife,  for  a  division  and 
partition  of  certain  real  estate,  situate  in  the  town  of  Saugerties, 
Ulster  county,  N.  Y.,  and  for  sale  of  the  premises  if  it  shall 
appear  that  a  partition  thereof  cannot  be  made  without  great  preju- 
dice to  the  owners.  That  the  summons  in  said  action  was  served 
on  said  infant,  and  on  your  petitioner  on  the  19th  day  of  November, 
1887,  and  no  guardian  ad  litem  has  been  appointed  for  said  infant, 
and  he  has  no  general  or  testamentary  guardian. 

Wherefore  your  petitioner  prays  that  the  court  may  appoint  a 
suitable  and  disinterested  person  to  be  a  guardian  for  the  said 
infant,  for  the  special  purpose  of  taking  charge  of  the  interests  of 
the  said  infant  in  relation  to  the  proceedings  for  a  partition  of  the 
premises  above  mentioned. 
(Add  verification  as  to  pleading.) 

ELIZA  LOUTHER. 

Precedent  for  Affidavit  as  to  Responsibility. 

SUPREME  COURT. 


JOHN  A.  LOUTHER 

agst. 

ELIZA  LOUTHER  and  Others. 


Ulster  County,  ss.  .• 

Charles  Davis,  of  said  county,  being  duly  sworn,  says  that  he 
resides  in  the  city  of  Kingston,  said  county. 

That  he  is  an  attorney  and  counsellor  of  this  court,  and  is  fully 
competent  to  understand  and  protect  the  rights  of  Burton  Louther, 
the  infant  defendant,  in  the  above  action,  and  has  no  interest 
adverse  to  that  of  said  infant,  and  is  not  connected  in  business  with 


PARTITION.  131 


Art.  4.     Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 

the  attorney  or  counselor  of  the  adverse  parties,  or  of  any  of  them. 
That  he  is  of  sufficient  financial  ability  to  answer  to  the  said  infant 
for  any  damage  which  may  be  sustained  by  his  negligence  or  mis- 
conduct in  the  defence  of  this  action,  and  is  worth  over  $500  over 
and  above  all  his  debts  and  liabilities,  besides  property  exempt  by 
law  from  execution,  and  that  his  property  consists  of  unincumbered 
real  estate,  in  the  said  county  of  Ulster,  worth  over  $1,000. 

(Jurat.)  (Signature.) 

Precedent  for  Consent  to  act  as  Guardian. 

I  hereby  consent  to  become  the  guardian  ad  litem  of  the  defend- 
ant, Burton  Louther,  in  the  above  action. 

Dated  March  6,  1888.  CHARLES  DAVIS. 

(Add  acknowledgment,  usual  form.) 

Sub.  3.  Security  Required  from  Guardian  ad  Litem.     §  1536. 

§  1536.   [Am'd,  1884.]  Security. 

The  security  to  be  given  by  the  guardian  ad  litem  for  an  infant  party,  in  an 
action  for  partition,  must  be  a  bond  to  the  people  of  this  State,  executed  by  him 
and  one  or  more  sureties,  as  the  court  directs,  in  a  sum  fixed  by  the  court,  con- 
ditioned for  the  faithful  discharge  of  the  trust  committed  to  him  as  guardian, 
and  to  render  a  just  and  true  account  of  his  guardianship,  in  any  court  or  place, 
when  thereunto  required.  The  bond  must  be  filed  with  the  clerk,  before  the 
guardian  enters  upon  the  execution  of  his  duties;  and  it  cannot  be  dispensed 
with,  although  he  is  the  general  guardian  of  the  infant. 

The  bond  must  be  sufificient,  and  must  be  executed  by  the 
guardian  himself  with  sureties.  Clark  v.  Clark,  14  Abb.  299; 
Lansing  V.  Giilick,  26  How.  250;  Jennings  v.  Jennings,  2  Abb.  6. 

It  is  erroneous  in  an  action  of  partition  to  allow  an  infant  to 
act  by  guardian  without  security.  Struppmanv .  Midler ,  52  How. 
211. 

The  bond  should  be  filed  before  the  guardian  enters  upon  the 
discharge  of  his  duties,  but  may  be  filed  at  any  time,  even  after 
judgment  nunc  pro  tnnc.  CrogJian  v.  Livingston,  25  Barb.  336, 
affirmed,  17  N.  Y.  218. 

Chapter  277,  Laws  of  1852,  giving  authority  for  filing  of  guard- 
ian bonds  after  judgment,  is  repealed  by  Laws  1880. 

An  order  of  the  court  appointing  a  guardian  ad  litem  of  an 
infant  in  partition  which  failed  to  direct  the  guardian  to  give  a 
bond  in  compliance  with  this  section,  is  held  defective  and  the 
judgment  thereafter  rendered  in  the  action  does  not  bind  the 
infant.  The  failure  to  file  a  bond  before  entering  upon  the  exe- 
cution of  his  duties  by  a  guardian  cannot  be  cured  by  an  order 


132  PARTITION. 


Art.  4.      Restrictions  and  Regulations  as  to  Partition  by  an  Infant. 


nunc  pro  ^Ufic  amending  the  proceedings  made  without  notice  to 
the  infant  in  person  or  to  the  other  parties  in  the  suit.  An  attor- 
ney for  a  party  in  a  partition  suit  has  no  power  under  his  original 
employment  more  than  a  year  after  judgment  to  consent  to  the 
entry  of  orders  amending  proceedings  nunc  pro  tunc.  Walter  v. 
DeGraff,  19  Abb.  N.  C.  406;  .s.  c.  11  St.  Rep.  274. 

In  Shaw  v.  Lawrence,  14  How.  94,  the  bond  filed  was  allowed 
to  be  amended  on  petition,  verified  by  all  the  obligors  specifying 
the  alterations,  and  containing  a  consent  to  the  amendment,  and 
a  new  surety  may  be  united  on  consent  of  such  obligors. 

The  clerk  when  appointed  as  guardian  ad  litem  in  partition 
must  give  security  as  required  by  this  section,  and  the  court  has 
no  power  to  relieve  him  therefrom.     Fisher  v.  Lyon,  34  Hun,  183. 

It  seems  a  separate  bond  should  be  given  for  each  infant  defend- 
ant, but  an  omission  so  to  do  will  not  affect  the  jurisdiction  of 
the  court.  Reed  \.  Reed,  4.6  Hun,  212;  s.  c.  11  St.  Rep.  524. 
The  same  case  holds  that  the  guardian  is  liable  to  the  infants  for 
failure  to  discharge  his  duty  and  that  is  their  only  remedy  there- 
for. 

Where  a  bond  given  by  a  guardian  ad  litem  for  an  infant  de- 
fendant, ran  to  "  People  of  the  State  of  New  York  to  be  paid  to 
said  infants,"  etc.,  the  infants  were  not  previously  named  and 
were  named  in  the  conditions  of  the  bond,  it  was  held  that  there 
was  a  substantial  compliance  with  the  provisions  of  §  1536  and 
that  a  separate  bond  for  each  infant  was  not  imperatively  required. 
Crouterv.  Cr outer,  133  N.  Y.  55. 

Precedent  for  Guardian's  Bond. 

Know  all  men  by  these  presents  that  we,  Charles  Davis  and  Amasa 
Humphrey,  both  of  the  city  of  Kingston,  Ulster  county,  New  York, 
are  held  and  firmly  bound  unto  the  People  of  the  State  of  New  York, 
in  the  penal  sum  of  $500,  for  which,  well  and  truly  to  be  paid,  we 
bind  ourselves,  our  heirs,  executors,  administrators  and  assigns, 
jointly  and  severally,  firmly  by  these  presents. 

Whereas,  by  an  order  duly  made  by  the  Supreme  Court  of  the 
State  of  New  York  at  a  Special  Term  thereof,  held  at  the  court- 
house in  the  city  of  Kingston  this  loth  day  of  March,  1888,  the 
said  Charles  Davis  was  appointed  guardian  ad  litem  of  Burton 
Louther,  an  infant  defendant  in  an  action  to  partition  real  estate 
brought  by  John  A.  Louther  and  others;  said  guardian  being 
required  to  give  the  security  hereby  given.  Now,  therefore,  the 
condition  of  this  obligation  is  such  that  if  the  said  Charles  Davis 
shall  faithfully  discharge  the  trust  committed  to  him  as  such  guard- 


PARTITION.  133 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 


ian,  and  render  a  just  and  true  account  therein  in  all  respects,  then 
this  obligation  is  to  be  void,  otherwise  to  remain  in  full  force. 
In  presence  of 

(Signatures.)  (Seals.) 


ARTICLE  V. 

Necessary   and   Proper   Parties   in  Partition.    §§  1538, 

i539>  1594.  1540,  1588- 

Sub.  I.  Who  are  necessary  and  proper  parties.     §§  1538,  1539,  1594. 

2.  Supplemental  summons  in  case  of  death  of  party.     §  1588. 

3.  Creditors  having  liens  on  undivided  shares  as  parties.     §  1540. 

Sub.  I.  Who    are    Necessary    and    Proper    Parties.      §§    1538, 

1539,  1594- 
§  1538.     [Am'd,  1896.J     Who  must  be  parties. 

Every  person  having  an  undivided  share,  in  possession,  or  otherwise,  in  the 
property,  as  tenant  in  fee,  for  life,  by  the  curtesy,  or  for  years;  every  person  en- 
titled to  the  reversion,  remainder,  or  inheritance  of  an  undivided  share,  after  the 
determination  of  a  particular  estate  therein;  every  person  who,  by  any  con- 
tingency contained  in  a  devise,  or  grant,  or  otherwise,  is  or  may  become  en- 
titled to  a  beneficial  interest  in  an  undivided  share  thereof;  every  person  having 
an  inchoate  right  of  dower  in  an  undivided  share  in  the  property;  and  every 
person  having  a  right  of  dower  in  the  property,  or  any  part  thereof,  which  has 
not  been  admeasured,  must  be  made  a  party  to  an  action  for  a  partition.  But 
no  person,  other  than  a  joint  tenant,  or  a  tenant  in  common  of  the  property, 
shall  be  a  plaintiff  in  the  action.  Whenever  an  action  for  the  partition  of  real 
property  shall  be  brought  before  the  expiration  of  three  years  from  the  time 
when  letters  of  administration  or  letters  testamentary,  as  the  case  may  be,  shall 
have  been  issued  upon  the  estate  of  the  decedent  from  whom  the  plaintiff's  title 
is  derived,  the  executors,  or  administrators,  as  the  case  may  be,  if  any,  of  the 
estate  of  said  decedent  shall  be  made  parties  defendant.  In  case  no  executor  or 
administrator  of  such  decedent  shall  have  been  appointed  at  the  time  said  action 
is  begun,  that  fact  shall  be  alleged  in  the  complaint.  The  executors  or  adminis- 
trators, if  any,  as  the  case  may  be,  of  a  deceased  person,  who,  if  living,  should 
be  a  party  to  such  action,  shall  be  made  parties  defendant  therein,  and,  in  case 
no  executor  or  administrator  of  such  deceased  person  shall  have  been  appointed, 
that  fact  shall  be  alleged  in  the  complaint.  Where  the  interlocutory  judgment 
directs  a  sale  of  the  premises  sought  to  be  partitioned;  or  of  some  part  thereof, 
the  premises  so  sold  pursuant  to  such  interlocutory  judgment,  shall  be  free  from 
the  lien  of  every  debt  of  such  decedent  or  decedents,  except  debts  which  were  a 
lien  upon  the  premises  before  the  death  of  such  decedent  or  decedents.  Where 
the  action  is  brought  before  three  years  have  elapsed  from  the  granting  of  such 
letters  of  administration  or  letters  testamentary,  as  the  case  may  be,  upon  the 
estate  of  the  decedent  from  whom  the  plaintiff  derived  his  title,  the  final  judg- 
ment shall  direct  that  the  proceeds  of  the  sale  remaining  after  the  payment  of  the 
costs,  referee's  fees,  expenses  of  sale,  taxes,  assessments,  water  rates,  and  liens 


134 


PARTITION. 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 


established  before  the  death  of  the  decedent  therein  directed  to  be  paid,  be  forth- 
with paid  into  the  court  by  the  referee  making  such  sale  by  depositing  the  same 
with  the  county  treasurer  of  the  county,  in  which  the  trial  of  the  action  is  placed, 
to  the  credit  of  the  parties  entitled  t-hereto,  to  await  the  further  order  in  the 
premises.  Where  the  action  is  brought  before  three  years  have  elapsed  from 
the  granting  of  letters  of  administration  or  letters  testamentary,  as  the  case  may 
be,  upon  the  estate  of  a  deceased  person  who,  if  living,  should  be  a  party  to  the 
action,  the  final  judgment  shall  direct  that  the  share  of  the  proceeds  of  such 
sale  which  would  have  been  his,  if  living,  be  paid  into  court  by  such  referee,  by 
depositing  the  same  with  such  county  treasurer,  to  await  the  further  order  in  the 
premises.  Upon  the  certificate  of  the  surrogate  of  the  county  of  which  the  de- 
cedent was,  at  the  time  of  his  death,  a  resident,  showing  that  three  years  have 
elapsed  since  the  issuing  of  letters  testamentary  or  letters  of  administration,  as 
the  case  may  be,  upon  the  estate  of  said  decedent,  and  that  no  proceeding  for 
the  mortgage,  lease  or  sale  of  the  real  property  of  said  decedent  for  the  payment 
of  his  debts  or  funeral  expenses,  or  both,  is  pending,  and  upon  the  certificate  of 
the  county  clerk  of  the  county  where  the  real  property  sold  under  the  interlocu- 
tory judgment  is  located,  showing  that  no  notice  provided  for  in  section  twenty- 
seven  hundred  and  fifty-one  of  the  code  of  civil  procedure  has  been  filed  in  his 
office,  the  court  wherein  the  final  judgment  was  made,  shall,  upon  the  applica- 
tion of  any  party  to  said  action,  make  an  order  directing  the  county  treasurer  to 
pay  to  said  party  from  said  deposit  the  amount  to  which  he  is  entitled  under  the 
said  final  judgment  with  the  accumulation  thereon,  if  any,  less  the  fees  of  said 
county  treasurer.  Any  party  to  such  action  may,  at  any  time  after  final  judg- 
ment, upon  notice  to  the  executors  or  administrators  of  the  decedent  from  whom 
the  party  applying  derived  his  share  or  interest,  apply  to  the  court  in  which  said 
action  is  pending  for  leave  to  withdraw  the  deposit  or  share  of  the  deposit,  ad- 
judged in  the  final  judgment  to  belong  to  him;  and,  upon  said  application,  the 
court  may,  in  its  discretion,  make  an  order  directing  the  county  treasurer  to  pay 
over  to  said  party  the  deposit,  or  the  share  of  the  deposit,  adjudged  in  the  final 
judgment  to  belong  to  him,  but  said  order  shall  not  be  made  until  said  party  so 
applying  shall  have  furnished  a  bond  to  the  people  of  the  State  of  New  York  in 
the  penalty  of  twice  the  amount  of  the  deposit  sought  to  be  withdrawn,  with  two 
or  more  good  and  sufl[icient  sureties,  approved  by  the  judge  or  justice  of  the 
court  making  such  order,  and  filed,  with  such  approval,  in  the  office  of  the  clerk 
of  the  county  in  which  such  action  is  pending,  to  the  effect  that  the  said  party  so 
withdrawing  said  deposit  will  pay  any  and  all  claims,  not  exceeding  the  amount 
of  said  deposit,  when  thereunto  required  by  order  of  the  court  or  by  order  of  the 
surrogate  or  of  the  surrogate's  court  in  a  proceeding  to  mortgage,  lease  or  sell 
the  real  property  of  such  decedent. 

§  1539.  [Am'd,  1892.]  Who  may  be  made  parties. 

The  plaintiff  may,  at  his  election,  make  a  tenant,  by  the  curtesy,  for  life,  or 
for  years,  of  the  entire  property,  or  whoever  may  be  entitled  to  a  contingent  or 
vested  remainder  or  reversion  in  the  entire  property,  or  a  creditor,  or  other  per- 
son, having  a  lien  or  interest,  which  attaches  to  the  entire  property,  a  defendant 
in  the  action.  In  that  case,  the  final  judgment  may  either  award  to  such  a 
party  his  or  her  entire  right  and  interest,  or  the  proceeds  thereof,  or  where  the 
right  or  interest  is  contingent  direct  that  the  proceeds  or  share  thereof  be  sub- 
stituted for  the  property  and  invested  for  whoever  may  eventually  be  entitled 


PARTITION.  135 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 


thereto,  or  may  reserve  and  leave  unaffected  his  or  her  right  and  interest,  or 
any  portion  thereof.  A  person  specified  in  this  section,  who  is  not  made  a 
party,  is  not  affected  by  the  judgment  in  the  action. 

§  1594.  When  the  State  is  interested. 

The  people  of  the  State  may  be  made  a  party  defendant  to  an  action  for  the 
partition  of  real  property,  in  the  same  manner  as  a  private  person.  In  such  a 
case,  the  summons  must  be  served  upon  the  attorney-general,  who  must  appear 
in  behalf  of  the  people. 

Section  1538  was  first  amended  in  i8go,  by  adding  provisions 
to  the  effect  that  in  an  action  of  partition  the  executors  or  admin 
istrators  and  creditors  of  the  deceased  person,  who  if  living  should 
be  a  party  to  the  action,  must  be  made  defendants  and  regu- 
lating the  proceedings  to  be  had  where  there  are  unpaid  debts 
of  the  deceased.  This  amendment  disposes  of  the  vexed  ques- 
tion in  the  courts  as  to  whether  or  not  the  action  could  be 
maintained  in  case  an  answer  set  up  the  fact  that  there  were 
existing  debts  which  were  a  lien  upon  the  property.  It  was 
previous  to  that  amendment  the  practice  in  many  instances 
to  make  the  executor  and  administrator  of  a  deceased  person 
parties,  in  order  that  the  debts  might  be  paid  in  the  action,  and 
a  form  of  complaint  is  given  entitled  "  Amended  and  Supple- 
mental Complaint  setting  out  void  devise,"  which  contains  proper 
allegations  in  such  a  case.  The  provisions  of  §  1538  as  it 
stood  prior  to  the  amendment  by  Chapter  277,  Laws  of  1896, 
did  not  authorize  an  order  bringing  in  the  administrator  and 
all  the  general  creditors  of  the  estate,  as  the  common  ancestor 
was  not  a  person  who  if  living  should  be  made  a  party  to  the 
action,  as  in  such  case  there  could  be  no  action ;  that  provision 
applied  only  to  the  case  of  a  deceased  owner  of  an  undivided 
share.      Undcrhill  v.  Underhill,  6  App.  Div.  78. 

A  life  tenant  cannot  maintain  partition  against  the  owner  in 
fee.  Muldozvncy  v.  Morris  &  Essex  R.  R.  Co.  42  Hun,  444.  All 
tenants  in  common  must  be  made  parties.  BurJians  v.  Burhans^ 
2  Barb.  Ch.  398.  Remaindermen  should  be  parties  and  are  neces- 
sary in  order  to  bind  their  interests  by  the  judgment.  A  rever- 
sioner is  a  necessary  party  where  the  action  is  brought  by  a 
person  entitled  to  an  undivided  share  of  the  reversion,  and  also 
where  the  action  is  brought  by  the  owner  of  an  undivided 
share  of  the  premises  for  life  or  of  any  other  estate  therein  and 


136  PARTITION. 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 

some    of    the  other   parties    own   the    residue.      Striker  v.  Mott^ 
2  Paige,  387. 

Where  an  undivided  portion  of  the  premises  has  been  conveyed 
to  a  trustee  upon  an  unauthorized  trust  the  cestui  que  trust  is  a 
necessary  party  to  the  action,  otherwise  where  the  trustee  takes 
the  title  under  a  vaHd  trust.  Braker  v.  Deveraux,  8  Paige,  513; 
Scott  V.  Stebbins^  27  Hun,  335.  But  if  the  parties  are  all  adults 
the  objection  should  be  raised  by  answer.  Braker  v.  Deveraux^ 
8  Paige,  513.  A  tenant  in  common  of  part  of  the  property  is  not 
debarred  from  bringing  partition  because  he  is  a  trustee  as  to 
another  part.  Cheesernan  v.  Thorne^  i  Edw.  630.  As  to  right  of 
lessee  to  become  purchaser  of  an  undivided  interest,  see  Lansing 
V.  Pine^  4  Paige,  639. 

The  persons  entitled  in  remainder  to  the  real  estate  devised  in 
trust  with  power  to  convey  to  them,  have  a  vested  interest  in  the 
property  notwithstanding  the  Statute  of  Trusts,  §  73,  which  de- 
clares the  entire  legal  and  equitable  title  to  be  in  the  trustee,  and 
they  should  be  made  parties  to  an  action  in  partition.  If  not  made 
parties  their  interests  are  not  affected  by  a  judgment  and  sale. 
Moore  v.  Appleby,  36  Hun,  368,  affirmed,  108  N.  Y.  237. 

If  the  plaintiff  does  not  make  all  necessary  parties  defendant 
he  will  not  be  entitled  to  judgment  of  partition  or  sale.  Burhans 
v.  Burhans,  2  Barb.  Ch.  398.  But  where  the  real  estate  is  con- 
verted into  personalty  by  will  of  testator  and  the  whole  title  vests 
in  trustees,  the  parties  entitled  to  the  fund  are  not  necessary  de- 
fendants in  an  action  of  partition.  Delafield  v.  Barlow,  107 
N.  Y.  537. 

Persons  who  have  parted  with  their  interest  in  the  premises  are 
not  necessary  parties.  Van  Derwerker  v.  Van  Derwerkcr^  7  Barb. 
221.  The  section  now  provides  that  every  person  having  an  in- 
choate right  of  dower  in  the  property  or  any  part  thereof  must  be 
a  party.  As  to  the  rule  under  the  Revised  Statutes,  see  Tanner 
V.  Niles,  I  Barb.  560 ;  BradsJiaw  v .  Callaghafi,  5  Johns.  80, 
approved,  8  Johns.  558;  Coles  v.  Coles  ,  15  Johns.  319;  Green  v. 
Putnam,  i  Barb.  500 ;  Wood  v.  Clutc,  i  Sandf.  Ch.  199.  The 
court,  before  it  will  order  a  sale  of  land  in  partition  cases,  requires 
that  all  those  having  an  interest  in  them  should  be  made  parties 
to  the  action  to  the  end  that  the  purchaser  may  get  a  perfect  title. 
Hence  the  wives  of  those  entitled  to  a  share  of  the  land  must  be 
made  parties.     Knapp  v.  Hungerford,  7  Hun,  588. 


PARTITION.  137 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 

It  was  held  in  Rosekrans  v.  Rosekrans^  7  Lans.  486,  that  under 
the  then  statute  the  wives  of  owners  were  only  necessary  parties 
in  case  a  sale  was  had.  It  was  also  held  in  that  case  that  the  wife 
of  the  party  bringing  suit  need  not  be  joined  as  plaintiff;  that  she 
is  more  properly  made  a  defendant.  In  Foster  v.  Foster^  38  Hun, 
365,  it  is  held  that  the  plaintiff  may  join  his  wife,  having  an  in- 
choate right  of  dower,  with  him  as  plaintiff,  and  that  it  is  not  a 
violation  of  §  1538,  and  a  demurrer  interposed  on  the  ground  of 
misjoinder  of  parties  was  overruled. 

It  seems  that  partition  was,  under  §  452  of  the  former  Code,  an 
action  for  the  recovery  of  real  property,  so  that  the  court  could 
order  a  person  not  a  party,  but  having  an  interest  in  the  matter, 
to  be  made  a  party  by  amendment.  Waring  v.  Waring^  3  Abb. 
246.  If  rents  are  due  from  one  of  the  tenants  in  common  to  an- 
other at  the  time  of  the  death  of  the  latter,  the  administrator  of 
the  deceased  co-tenant  is  a  proper  party  to  the  action,  as  he  is 
entitled  to  receive  such  rents.  Scott  v.  Guernsey,  48  N.  Y.  106. 
Where  the  legatees  under  a  will  are  not  made  parties  and  the 
personal  estate  was  insufficient  to  pay  them  and  the  legacies  are 
or  may  be  a  charge  on  the  real  estate,  a  purchaser  will  not  be 
compelled  to  take  title.     Jordan  v.  Poillon,  jy  N.  Y.  518. 

Where  an  action  to  partition  land  was  commenced  before  the 
death  of  plaintiff's  grantor,  and  before  judgment  the  grantor  died 
leaving  several  children  who  were  not  made  parties  defendant, 
and  the  action  proceeded  to  judgment  and  sale,  held,  the  title  of 
the  children  not  made  parties  was  not  affected  by  the  sale.  Mil- 
ler V.  Wright,  Ct.  of  App.  14  St.  Rep.  811. 

But  the  presumption  is,  in  the  absence  of  an  allegation  to  the 
contrary,  that  the  personalty  is  sufificient,  an  executor  is  not  a 
necessary  party.  Prentice  v.  Jansen,  79  N.  Y.  478.  Where  cer- 
tain grandchildren  took  a  contingent  limitation  upon  a  fee  under 
a  will,  held,  that  they  were  necessary  parties  to  an  action  of  par- 
tition between  those  holding  the  prior  contingent  estate  in  fee 
under  the  will.  Nellis  v.  Nellis,  99  N.  Y.  505.  The  person  in 
possession  should  always  be  made  a  party  to  an  action  of  parti- 
tion.    Kapp  V.  Kapp,  15  St.  Rep.  967. 

Section  1539  is  said  to  be  modeled  upon  §  36  of  the  Revised 
Statutes,  relating  to  actions  of  partition,  with  the  addition  of  a 
clause  including  a  lienor  of  the  entire  property,  amended  so  as  to 
permit  the  plaintiff  to  join  the  persons  specified   as  defendants. 


138  PARTITION. 


Art.  5.      Necessary  and  Proper  Parties  in  Partition. 


and  by  providing  that  such  a  person  shall  not  be  affected  by  the 
judgment  only  where  not  so  joined,  or  where  joined  his  rights 
are  reserved  by  the  judgment.  Section  1540  is  from  chapter  320, 
Laws  of  1830.  These  sections  seem  to  render  obsolete  Bogardus 
V.  Parker,  7  How.  305,  holding  that  an  incumbrancer  of  the  whole 
property  was  a  necessary  party.  It  was  held  in  Wotten  v.  Cape- 
land,  7  Johns.  Ch.  140;  Harwoodv.  Kirby,  i  Paige,  469;  Sebring 
V.  Mersereau,  9  Cow.  344,  that  mortgagees  or  judgment  creditors 
are  not  necessary  parties.  They  could,  however,  be  made  parties. 
Harivood  v.  Kirby,  i  Paige,  470. 

Incumbrancers  may  be  made  parties  in  order  to  ascertain  their 
rights  in  an  action  for  partition.  Grinnellv.  Maclean,  16  Hun, 
133.  Though  not  necessary  to  make  creditors  having  a  lien  by 
judgment,  mortgage,  decree,  or  otherwise,  parties  defendant,  yet 
it  is  always  safe  and  proper  to  do  so,  particularly  where  a  sale  is 
contemplated ;  and  that,  too,  whether  the  lien  be  a  specific  lien 
on  the  interest  of  one  of  the  parties,  or  a  general  lien  on  the 
whole  premises.  Barb.  Ch.  Pr.  288 ;  Bogardus  v.  Parker,  7  How. 
305.  A  general  lien  on  the  whole  premises,  paramount  to  the 
title  of  tenants  in  common,  is  not  cut  ofT  by  partition  to  which 
the  holder  of  such  a  lien  is  not  a  party.  Mead  v.  Jenkins^  29 
Hun,  53. 

A  person  who  has  or  claims  to  have  a  lien  upon  or  interest  in 
the  entire  property  sought  to  be  partitioned,  may  be  made  a  party. 
Best  V.  Zeh,  82  Hun,  232,  63  St.  Rep.  549,  31  Supp.  230. 

A  creditor  with  lien  on  the  whole  premises,  need  not  be  made 
a  party.  But  if  he  is,  the  amount  and  validity  of  his  lien  may  be 
determined.      Townshendv.  Toivnshend,  i  Abb.  N.  C.  81. 

A  creditor  of  one  deceased,  who  has  no  lien  by  judgment,  has 
no  right  to  be  made  a  party  to  an  action  of  partition,  brought  to 
divide  the  real  estate  of  deceased  between  his  heirs  and  devisees. 
Waring  v.  Waring,  3  Abb.  246. 

The  future  contingent  interests  of  persons  not  in  esse,  such  as 
contingent  remaindermen  or  persons  to  take  under  an  executory 
devise,  who  may  hereafter  come  into  being,  are  bound  by  the 
judgment,  they  being  considered  as  virtually  represented  by  the 
parties  to  the  action  in  whom  the  present  title  is  vested.  Mead 
v.  Mitchell,  17  N.  Y.  210. 

Where,  in  an  action  of  partition,  all  the  necessary  parties  were 
before  the  court,  but  the  plaintiff  was  both  a  tenant  in  common 


PARTITION.  139 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 


and  trustee,  but  was  not  either  plaintiff  or  defendant  in  such 
capacity,  although  his  interests  were  stated,  there  was  not  a 
defect  of  parties.  Diehlv.  Lanibart,  9  Civ.  Pro.  R.  267.  \\-\  Jor- 
dan V.  Van  Epps,  85  N.  Y.  427,  where  it  was  claimed  that  a  dower 
right  was  not  affected  by  the  partition,  it  was  said  the  court  had 
jurisdiction  over  the  subject-matter  and  the  parties  in  the  parti- 
tion suit ;  the  plaintiff's  right  of  dower  was  set  forth  in  the  com- 
plaint, and  she  could  have  contested  the  statement  of  the  same  if 
she  chose  to  do  so;  she  interposed  no  defence  that  her  dower 
right  was  not  the  subject  of  adjudication  or  the  judgment  errone- 
ous, and  the  decree  in  partition  was  held  binding.  In  an  action 
for  partition,  the  holder  of  a  mortgage  was  made  a  party  defend- 
ant; the  lien  of  his  mortgage  being  questioned,  he  answered 
alleging  its  validity,  and  asked  that  the  premises  be  sold  subject 
thereto,  or  that  it  be  paid  out  of  the  proceeds.  The  mortgage 
was  adjudged  not  to  be  a  valid  lien ;  it  was  held  that  the  mort- 
gagee was  bound  by  the  decision.  Barnard  v,  Onderdonk,  98 
N.  Y.  158.  The  rule  as  established  by  the  Revised  Statutes, 
enlarging  the  power  of  the  court  in  partition  cases  so  as  to  dis- 
place liens  on  the  property  and  transferring  the  same  to  the  fund, 
has  been  preserved  by  the  present  Code.  But  general  liens  on 
the  entire  property,  or  general  or  specific  liens  on  undivided 
shares,  cannot  be  enforced  by  the  final  judgment  unless  the  par- 
ties having  liens  have  been  made  defendants.  It  seems  certain 
that  the  Legislature  intended  that  persons  claiming  to  have 
adverse  liens  may  be  made  parties  defendant  in  a  partition  suit, 
under  §  1539,  at  the  election  of  the  plaintiff,  and  their  validity 
adjudicated  therein.      Lcincn  v.  Elter,  43  Hun,  249. 

In  an  action  for  partition  of  lands  brought  by  a  grantee  in  a 
trust  deed,  by  the  terms  of  which  he  was  authorized  only  to  sell 
so  much  of  the  property  as  was  necessary  for  certain  purposes  and 
had  discretion  with  regard  thereto,  and  which  directed  that  upon 
the  death  of  the  grantor,  he  should  pay  over  the  residue  to  the 
grantor's  surviving  children,  it  was  held  that  upon  the  death  of 
such  grantor  before  judgment,  his  children  were  necessary  par- 
ties, and  that  without  them  a  title  could  not  be  perfected,  such 
children  having  an  interest  in  the  fee  and  grantor's  interest  then 
ceasing.  Miller  v.  Wright,  109  N.  Y.  194.  This  case  distin- 
guished Delaficldv.  Barlow  107  N.  Y.  535,  where  it  was  held  that 
under  the  provisions  of  a  will  devising  real  estate,  an  infant  child 


I40  PARTITION. 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 


of  one  of  the  daughters  was  not  a  necessary  or  proper  de- 
fendant, under  this  section,  for  the  reason  that  she  could  never 
take  the  real  estate  and  had  no  title  thereto  or  interest  therein 
as  realty,  but  that  the  whole  title  vested  in  the  executors  and 
trustees. 

It  was  said  in  Tilton  v.  Vail,  53  Hun,  324,  that  the  prohibition 
of  §  1538  as  to  any  other  person  than  a  joint  tenant  or  tenant  in 
common,  being  entitled  to  bring  the  action,  was  injected  into  the 
law  by  the  codifier  and  did  not  exist  in  the  Revised  Statutes. 

In  Reed  v.  Reed,  46  Hun,  212,  affirmed,  107  N.  Y.  545,  it  was 
held  that  where  an  action  for  partition  was  commenced  by  one 
who  under  this  section  was  a  proper  party  to  the  action  although 
not  a  joint  tenant  or  tenant  in  common,  the  defect  was  not  juris- 
dictional and  the  decree  directing  a  sale  not  void,  and  the  pur- 
chaser was  obliged  to  take  title.  But  where,  on  motion  of  the 
purchaser,  to  be  relieved  of  his  purchase,  it  appeared  that  certain 
non-resident  aliens  who  were  of  the  same  blood  and  kinship  with 
the  deceased  and  who,  if  citizens,  would  have  been  entitled  to  a 
share  in  the  land,  were  not  made  parties  to  the  suit,  the  applica- 
tion was  denied  upon  the  ground  .hit  the  judgment  did  not  suffi- 
ciently or  conclusively  as  against  the  heirs  not  made  parties, 
establish  their  incapacity  to  have  or  acquire  an  interest.  Toole  v. 
Toole,  112  N.  Y.  333. 

The  husband  of  a  person  who  died  intestate  seized  of  an  undi- 
vided interest  in  certain  premises  prior  to  the  commencement  of 
the  action  for  the  partition  thereof  is  a  necessary  party.  Bogert 
V.  Bogert,  23  St.  Rep.  595,  6  N.  Y.  Supp.  299,  25  St.  Rep.  373. 

Every  person  having  an  inchoate  right  of  dower  in  an  undivided 
share  of  property  to  be  partitioned  and  every  person  having  a 
right  of  dower  in  any  part  thereof  which  has  not  been  admeas- 
ured, must  be  made  a  party.     Joiirdan  v.  Haran,  56  N.  Y.  Supr. 

185. 

Where  a  will  devises  a  share  of  real  estate  in  trust  for  the 
benefit  of  another  during  life,  and  upon  his  death  to  his  child  or 
heirs  in  an  action  of  partition,  those  entitled  to  such  share  were 
not  made  parties  and  it  was  held  that  they  were  not  concluded  by 
the  judgment.     Moore  v.  Appleby,  108  N.  Y.  237. 

The  fact  that  one  has  a  claim  by  virtue  of  which  he  may  become 
interested  in  real  estate,  does  not  render  him  a  proper  party. 
Savage  v.  Allen^  54  N.  Y.  458. 


PARTITION.  141 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 


The  case  of  Dargin  v.  Wells,  Supreme  Court,  at  Special  Term, 
is  cited  Abbott's  Dig.  vol.  10,  at  page  365,  questioning  whether 
a  tenant  in  common  in  several  parcels  of  real  estate  in  each  of 
which  his  co-owners  are  different  persons,  can  bring  them  all  in 
as  defendants  in  a  single  suit,  and  therein  have  partition  decree 
as  to  all  the  property. 

In  Schwecn  v.  Grecnbcrg,  j6  Hun,  354,  59  St.  Rep.  134,  27 
Supp.  760 ;  Duffy  v.  Diirant  Land  Iniproveincnt  Co.  78  Hun,  314, 
60  St.  Rep.  729,  29  Supp.  165;  Mellen  v.  Bamiing,  72  Hun,  176, 
55  St.  Rep.  319,  25  Supp.  542,  the  question  of  necessary  parties 
is  discussed,  and  it  is  held  under  the  circumstances  of  those  cases 
that  certain  parties  other  than  those  on  the  record  were  necessary. 

Where  in  an  action  of  partition  brought  by  one  of  several  ten- 
ants in  common,  the  complaint  alleged  that  the  property  was  of 
such  a  character  and  so  situated  as  to  make  actual  partition  impos- 
sible except  with  grave  injury  to  the  interests  of  the  owners,  and 
therefore,  asked  a  sale  and  division  of  the  proceeds,  and  other 
parties  beside  plaintiff's  co-tenants  were  made  defendants,  the 
complaint  alleging  that  said  parties  "  claim  some  right,  title  or 
interest  in  said  premises,  the  exact  nature  of  which  is  unknown 
to  the  plaintiff  and  which  is  a  cloud  upon  the  title  to  said  premi- 
ses," and  asking  that  they  be  adjudged  to  have  no  interest  in  the 
property,  held,  that  such  other  persons  were  properly  made  par- 
ties defendant  and  the  complaint  stated  a  good  cause  of  action 
against  them ;  that  if  the  interest  claimed  by  either  of  said  de- 
fendants was  of  such  a  nature  as  to  be  totally  unaffected  by  the 
partition  sought,  this  should  be  asserted  by  answer;  and  that 
each  of  said  defendants  should  in  the  same  manner  disclose  his 
alleged  interest.      Tozvnsend  v.  Bogert,  126  N.  Y.  370. 

The  husband  of  one  of  the  owners  of  land  is  not  a  proper  or 
necessary  party  to  the  action  of  partition.  Barnes  v.  Blake,  59 
Hun,  371,  T,6  St.  Rep.  210,  20  Civ.  Pro.  R.  17;  Mapes  v.  Brown, 
Abb.  N.  C.  94;  Trustees  v.  RotJi.,  18  Wk.  Dig.  459;  Townseiut  v. 
Bogert,  37  St.  Rep.  488,  holds  a  complaint  not  demurrable  in  such 
case. 

A  claim  to  be  adjusted  and  paid  out  of  an  interest  in  real  estate 
conveyed,  does  not  make  the  claimant  a  necessary  party  in  an 
action  for  partition.   Smith  v.  Siblich,  35  St.  Rep.  682,  12  Supp.  905. 

A  defendant  claiming  dower  is  a  necessary  party  although  there 
is  a  question  as  to  the  validity  of  her  marriage,  as  the  validity  of 


142  PARTITION. 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 


her  claim  may  be  tried  and  her  interest  defined  in  such  an  action. 
Spliess  V.  Myers,  36  St.  Rep.  227,  20  Civ.  Pro.  R.  157,  13  Supp.  70. 

Where  a  will  directed  the  residuary  estate  to  be  divided  into 
shares,  one  share  to  be  held  in  trust  for  each  of  the  testator's 
children,  and  upon  the  death  of  each  beneficiary  directed  his 
share  to  be  paid  to  the  lawful  issue  him  surviving,  and  if  none 
survived,  made  no  other  disposition ;  held  that  the  grandchildren 
living  at  testator's  death  took  a  vested  remainder  in  the  share 
held  in  trust  for  their  parents,  respectively,  subject  to  open  and  let 
in  after-born  children  and  to  be  divested  by  their  death  before 
their  parent,  and  hence  they  were  necessary  parties  to  an  action 
of  partition.  Campbell  v.  Stokes,  142  N.  Y.  23,  36  N.  E.  Rep. 
811,  58  St.  Rep.  451. 

As  to  necessity  of  making  persons  having  interest  in  premises, 
parties,  see  Miller  v.  Wright,  109  N.  Y.  194;  Moore  v.  Appleby, 
108  N.  Y.  237. 

Sub.  2.   Supplemental  Summons  in   Case   of   Death  of  Party. 

§  1588. 

§  1588.  Proceedings  on  death  of  parties. 

If,  upon  the  death  of  one  of  two  or  more  plaintiffs,  or  one  of  two  or  more 
defendants,  in  an  action  for  partition,  the  interest  of  the  decedent  in  the  pro- 
perty passed  to  a  person,  not  a  party  to  the  action,  the  latter  may  be  made 
defendant  by  the  order  of  the  court;  and  a  supplemental  summons  may  be 
issued,  to  bring  him  in  accordingly. 

After  judgment  for  sale  and  partition,  and  advertising  the  sale 
plaintifT  died,  and  such  of  his  heirs  as  were  not  already  parties 
defendant  were  substituted  in  his  place  as  plaintiffs.  Held, 
it  was  not  necessary  to  advertise  anew,  changing  the  title  of 
the  case.  Thzving  v.  Thwing,  18  How.  458.  The  heir  may 
revive,  in  an  action  for  partition  and  accounting  for  rents,  as  to 
the  partition,  and  the  personal  representative  as  to  the  account. 
Hoffman  v.  Tredwell,  6  Paige,  308.  If  any  one  of  the  parties, 
who  is  a  tenant  in  common  of  the  premises,  dies  pending  the 
action,  it  must  be  revived  against  his  heirs.  A  sale  after  his 
death,  and  after  the  bill  has  been  taken  as  confessed  against  him 
without  revivor,  is  void  as  against  such  heirs.  The  heirs  are  not 
required  to  set  aside  the  decree  of  sale  by  motion  in  the  suit,  or 
to  appeal,  but  can  impeach  the  title  collaterally.  Requa  v. 
Holmes,  16  N.  Y.  193;  S.  C.  26  N.  Y.  338.  See  Gordo7i  v.  Sterl- 
ing, 13  How.  405,  as  to  practice  under  old  Code  on  revivor. 


PARTITION.  143 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 


Upon  the  abatement  of  proceedings  in  partition  by  the  death 
of  one  of  the  tenants  in  common,  the  rights  of  the  new  parties 
should  be  ascertained  by  a  reference.  Reynolds  v.  Reynolds  5 
Paige,  161.  See  Wide  v,  Jenkins,  4  Paige,  481  ;  Gardner  v. 
Luke,  12  Wend.  269. 


Precedent  for  Affidavit  to  Revive  Action  and  for  leave  to  file 

Supplemental  Complaint. 

SUPREME  COURT—  Ulster  County. 


CATHERINE  JOHNSON 

agst. 

ELIZA  RONK  et  al. 


State  of  New  York,  \ 
County  of  Ulster,        \ 


Rachel  A.  Kane,  being  duly  sworn,  says  she  resides  at  Walden, 
Orange  county,  N.  Y.,  that  she  is  the  daughter  of  Catherine  John- 
son, deceased,  who  was  plaintiff  in  this  action,  and  who  died  on  the 
i2th  day  of  April,  1888;  that  said  Catherine  Johnson  left  a  last  will 
and  testament  duly  executed,  whereby  she  devised  her  real  and  per- 
sonal estate  to  this  deponent  and  Maggie  Cameron,  Rebecca  Tears 
and  Josephine  Johnson. 

Deponent  further  says,  that  since  the  commencement  of  this  action 
and  about  the  2d  day  of  November,  1887,  Eliza  Ronk  died,  leaving 
her  last  will  and  testament,  whereby  she  devised  and  bequeathed  all 
her  real  and  personal  property  to  the  defendant  Benjamin  B.  Has- 
brouck;  that  since  the  commencement  of  this  action  the  defendant 
Elsie  Ells  died,  leaving  her  surviving  her  children  George  Ells, 
Elizabeth  D.  Smedes,  and  Mary  H.  DuBois. 

That  this  action  was  brought  to  partition  certain  real  estate, 
described  in  the  complaint,  situated  in  the  county  of  Ulster,  and 
has  proceeded  to  interlocutory  judgment  for  sale  thereof,  which 
judgment  was  entered  in  Ulster  county  clerk's  ofifice  on  the  12th  day 
of  January,  1888.  That  since  the  commencement  of  this  action  one 
Benjamin  B.  Hasbrouck  has  produced  a  paper  purporting  to  be  the 
last  will  and  testament  of  Jane  Hasbrouck,  deceased,  the  person 
from  whom  the  parties  to  this  action  took  title,  that  said  paper  was 
propounded  for  probate  in  Ulster  Surrogate's  Court  on  notice  to  all 
parties  interested  and  objections  filed  to  the  probate  thereof,  and 
which  probate  was  denied,  and  Irving  H.  Loughran,  the  adminis- 
trator, etc.,  of  Jane  Hasbrouck,  heretofore  appointed,  was  directed, 
by  order  of  the  Surrogate's  Court  of  said  county,  to  pay  the  costs  and 
expenses  of  the  contest  thereon,  and  as  deponent  is  informed  and 


144  PARTITION. 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 


believes,  he  has  not  in  hand  sufificient  funds  of  the  personal  estate 
for  that  purpose,  and  the  personal  estate  is  insufficient  therefor. 
That  as  deponent  is  informed  and  believes,  the  existence  of  such 
paper  was  not  known  to  her  mother,  Catherine  Johnson,  when  this 
suit  was  brought. 

Wherefore  plaintiff  asks  an  order  of  this  court  that  she  be  sub- 
stituted in  place  and  stead  of  Catherine  Johnson,  deceased,  as  sole 
plaintiff,  that  the  heirs-at-law  and  devisees  of  the  deceased  defend- 
ants be  brought  in  as  parties  defendants,  and  that  the  administrator 
of  Jane  Hasbrouck,  deceased,  be  made  a  party  defendant,  and  that 
leave  be  granted  to  serve  an  amended  complaint  herein,  adding  such 
parties  and  setting  forth  those  facts  and  allegations,  the  existence 
of  the  paper  purporting  to  be  a  will  of  Jane  Hasbrouck,  deceased, 
to  the  end  that  such  apparent  devise  may  be  alleged  and  declared 
void,  pursuant  to  the  provisions  of  the  Code  of  Civil  Procedure,  and 
for  a  further  order  that  the  interlocutory  judgment  and  the  proceed- 
ings heretofore  had,  fixing  the  rights  of  the  parties  including  the 
order  cf  reference  herein,  be  set  aside  and  vacated,  and  an  amended 
lis  pendens  filed  herein  and  the  action  proceed  upon  such  amended 
and  supplemental  complaint. 

(Add  jurat.)  RACHEL  A.   KANE. 

Precedent  for  Order  Reviving  Action  and  Giving  Leave  to 
Serve  Supplemental  Complaint. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  Supreme  Court 
Chambers  in  the  city  of  Kingston,  on  the  22d  day  of  June,  1888. 

Present  —  Hon.  Alton  B.  Parker,  Justice. 
SUPREME  COURT  —  Ulster  County. 


Catherine  Johnson 

agst. 

Eliza  Ronk,  Elsie  Ells,  Charlotte  Cranse,  Elizabeth 
Mulford  and  John,  her  husband,  l\Iary  J.  Colley 
and  William,  her  husband,  Isaac  Hasbrouck  and 
Laura,  his  wife,  Benjamin  B.  Hasbrouck  and 
Elizabeth,  his  wife,  and  Ellen  C.  Hasbrouck 

On  reading  and  filing  the  original  summons  and  complaint  in  this 
action,  together  with  the  affidavit  of  Rachel  A.  Kane,  showing  the 
death  of  the  plaintiff,  and  of  the  defendants,  Elsie  Ells  and  Eliza 
Ronk;  that  since  the  commencement  of  this  action  a  paper  had 
been  produced  by  the  defendant,  Benjamin  B.  Hasbrouck,  purport- 
ing to  be  the  last  will  and  testament  of  Jane  Hasbrouck,  deceased, 
which  paper  has  been  refused  probate  by  the  Surrogate's  Court  of 
Ulster  county,  and  that  certain  costs,  charges  and  expenses  have 
been  incurred  in  connection  therewith,  which  have  been  decreed  by 
said  Surrogate  that  they  be  paid  by  the  administrator,  and  that  the 


PARTITION.  145 


Art.  5.     Necessary  and  Proper  Parties  in  Partition. 


personal  estate  of  said  deceased  is  insufficient  to  pay  the  same,  and 
upon  the  proposed  supplemental  summons  and  complaint,  with  proof 
of  service  of  said  papers  and  notice  of  this  application  on  all  the 
attorneys  appearing  in  the  cause  and  on  Irving  H.  Loughran,  as 
attorney  for  the  deceased  plaintiff,  and  as  administrator  of,  etc.,  of 
Jane  Hasbrouck,  deceased. 

Now,  on  motion  of  Alvah  S.  Newcomb,  attorney  for  said  Rachel 
A.  Kane,  A.  D.  Lent  appearing  for  the  defendant  Irving  H.  Lough- 
ran, as  administrator  of,  etc.,  of  Jane  Hasbrouck,  deceased,  it  is 
ordered  that  Rachel  A.  Kane  be  and  is  hereby  substituted  in  the 
place  and  stead  of  Catherine  Johnson,  deceased;  that  George  W. 
Ells,  Charlotte  T.  Terwilliger,  Elizabeth  D.  Smedes  and  Mary  H. 
DuBois,  be  substituted,  as  parties  defendants,  in  the  place  and  stead 
of  Elsie  Ells,  deceased ;  that  Maggie  Cameron,  Rebecca  Tears, 
Josephine  Johnson  and  Augusta  Johnson  be  also  made  parties  de- 
fendants; that  Irving  H.  Loughran,  as  administrator  of,  etc.,  of 
Jane  Hasbrouck,  deceased,  be  brought  in  as  a  party  defendant; 
that  leave  be  granted  to  the  plaintiff  herein  and  hereby  substituted, 
and  she  is  ordered  and  directed  to  serve,  upon  all  the  defendants 
therein  named,  the  amended  and  supplemental  summons  and  com- 
plaint herewith  presented,  and  upon  which  this  application  is  made. 
It  is  further  ordered  and  adjudged  that  such  amended  and  supple- 
mental complaint  and  an  amended  lis  pendens  be  filed ;  and  it  is  fur- 
ther ordered  that  the  proceedings  heretofore  had,  including  the 
order  of  reference  herein  and  the  interlocutory  judgment  of  sale,  be 
vacated  and  set  aside,  and  that  the  action  proceed  in  the  names  of 
the  parties  named  in  the  amended  and  supplemental  summons. 
That  the  plaintiff,  Rachel  A.  Kane,  and  the  firm  of  A.  D.  Lent  be 
each  allowed  $10  as  their  costs  of  this  motion.  It  is  further  ordered 
that  the  costs  and  disbursements  heretofore  accrued  and  incurred 
in  the  action,  as  herein  entitled,  be  taxed  and  allowed  in  the  action 
as  directed,  to  be  revived  with  the  same  force  and  effect  as  if  said 
action  had  continued  to  judgment  as  first  entitled. 

ALTON   B.    PARKER, 

J.   S.  C. 


Sub.  3.   Creditors  Having  Liens  on  Undivided  Shares  as  Par- 
ties.    §  1540. 
§  1540.  Id.;  as  to  persons  having  liens. 

The  plaintiff  may,  at  his  election,  make  a  creditor,  having  lien  on  an  un- 
divided share  or  interest  in  the  property,  a  defendant  in  the  action.  In  that 
case,  he  must  set  forth  the  nature  of  the  lien,  and  specify  the  share  or  interest 
to  which  it  attaches.  If  partition  of  the  property  is  made,  the  lien,  whether  the 
creditor  is  or  is  not  made  a  party,  shall  thereafter  attach  only  to  the  share  or  in- 
terest assigned  to  the  party  upon  whose  share  or  interest  the  lien  attached; 
which  must  be  first  charged  with  its  just  proportion  of  the  costs  and  expenses  of 
the  action,  in  preference  to  the  lien. 

Under  §  1538  as  amended  by  Laws  of  1890,  Chapter  509,  it 
.seems  that  as  the  remedy  of  creditors  after  lapse  of  three  years  is 
by  action  against  the    heirs,   the    personal    representatives    of   a 

[Special  Actions  —  10.] 


146  PARTITION. 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


deceased  heir  and  the  creditors  were  proper  defendants  in  parti- 
tion.    Sa/ls  V.  Sails,  28  Abb.  N.  C.  117,  19  Supp.  246. 

See  §  1538,  supra,  as  amended  in  1896,  for  authority  to  make 
certain  persons  having  liens  parties.  It  is  regarded  as  the  more 
convenient  and  better  practice  to  make  all  lienors  parties  to  the 
action. 

ARTICLE    VI. 

Complaint  to  State  Interests  of  Parties.     §  1542. 

§  1542.   Complaint  to  state  interests  of  parties. 

The  complaint  must  describe  the  property  with  common  certainty,  and  must 
specify  the  rights,  shares,  and  interests  therein  of  all  the  parties,  as  far  as  the 
same  are  known  to  the  plaintiff.  If  a  party,  or  the  share,  right,  or  interest  of  a 
party,  is  unknown  to  the  plaintiff;  or  if  a  share,  right,  or  interest  is  uncertain  or 
contingent;  or  if  the  ownership  of  the  inheritance  depends  upon  an  executory 
devise;  or  if  a  remainder  is  a  contingent  remainder,  so  that  the  party  cannot  be 
named;  that  fact  must  also  be  stated  in  the  complaint. 

It  is  said  that  it  is  not  necessary  to  aver  that  the  plaintiff  is 
in  possession ;  that  will  be  presumed.  Jenkins  v.  Van  Schaack,  3 
Paige,  242.  But  the  contrary  is  held  in  Stezvart  v.  Munroe,  56 
How.  193,  citing  a  number  of  authorities.  See  on  this  point 
authorities  under  Subd.  i  of  Art.  III.  But  an  objection  that 
the  complaint  does  not  aver  that  plaintiff  is  in  possession,  is 
waived,  unless  taken  by  demurrer  or  answer.  Howell  v.  Mills, 
7  Lans,   193,  affirmed,  56  N.  Y.  226. 

An  averment  that  a  party  is  seized  will  be  construed  as  an 
averment  that  he  is  the  owner  of  the  fee.  Lticet  v.  Beektnan,  2 
Caines,  385.  The  complaint  should,  in  case  any  of  the  parties 
are  infants,  aver  that  the  lands  therein  described  are  the  only 
lands  owned  in  common  by  the  parties  as  required  by  the 
present  rule  65.  Moffat  v.  McLaughlin,  13  Hun,  449;  Pritchard 
V.  Draft,  32  Hun,  417.  The  estate  of  each  known  owner  must 
be  stated,  but  it  may  be  stated  that  certain  definite  portions 
belong  collectively  to  owners  who  are  unknown.  Hyatt  v.  Pugs- 
ley,  23  Barb.  285.  The  complaint  should  correctly  state  the 
shares  and  interests  of  the  parties,  but  no  mistake  or  error  in  that 
respect,  nor  any  omission  to  state  what  plaintiff  might  be  com- 
pelled to  insert  by  way  of  amendment,  will  afTect  the  decree. 
It  should  also  allege  that  there  are  no  other  incumbrancers  or 
parties  in  interest  than  those  mentioned  or  joined  therein.  Noble 
V  Cromzvell,  26  Barb.  475,  affirmed,  3  Abb.  Ct.  of  App.  Dec.  382. 
The  complaint  may  allege  that  one  of  the  defendants  claims  a 


PARTITION.  147 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


specific  lien  for  moneys  paid  to  extinguish  liens  on  the  premises, 
and  asks  to  have  an  account  of  such  lien.  Bogardiis  v.  Parker, 
7  How.  305. 

If  an  account  of  rents  is  required  it  should  be  asked  for  in  the 
complaint,  or  it  cannot  be  allowed  on  default.  Bullwmker  v. 
Ryker,  12  Abb.  311.  The  complaint  may  state  generally  the 
seizin  of  the  parties  without  stating  how  it  was  acquired.  Brad- 
shaw  V.  Calleghan,  8  Johns.  558.  But  if  the  rights  of  the  parties 
depend  upon  a  will,  it  is  proper  to  state  the  facts.  Van  Cortland 
V.  Beekman,  6  Paige,  492.  No  allegations  need  be  made  with 
regard  to  the  interests  of  contingent  remaindermen,  who  may 
hereafter  come  into  being,  they  being  virtually  represented  by 
the  parties  to  the  action  in  whom  the  present  title  is  vested.  Mead 
V.  Mitchell,  17  N.  Y.  210. 

A  complaint  praying  that  a  deed  be  set  aside,  and  the  premises 
conveyed  by  it  partitioned  and  plaintiff's  dower  assigned  to  her, 
held  not  demurrable  for  misjoinder  of  causes  of  action.  Ham- 
mond \.  Cockle,  2  Hun,  495. 

Where  the  complaint  in  an  action  brought  by  a  remainderman 
set  out  the  title,  rights  and  interests  of  the  respective  parties,  and 
that  they  were  of  full  age  and  demanded  a  partition  or  sale  of  the 
property,  but  did  not  allege  that  the  life  tenant  had  assented  to 
a  sale,  held,  that  the  complaint  stated  facts  sufficient  to  constitute 
a  cause  of  action ;  that  it  cannot  be  assumed  on  demurrer,  that 
partition  cannot  be  made  without  great  prejudice,  and  it  did  not 
appear  there  could  not  be  actual  partition.     Also  where  the  wife 
of  a  tenant  in  common  is  made  a  defendant,  and  his  share  alleged 
to  be  subject  to  her  inchoate  right  of  dower,  the  complaint  is  not 
demurrable.     Diehl  v.  Lambart,  9  Civ.  Pro.  R.  267,  distinguishing 
Scheu  V.  Lehning,  4  Civ.  Pro    R.  385.     An  error  in  the  description 
of  the  interests  of  the  parties  may  be  amended.      Thompson  v. 
Wheeler,  1 5  Wend.  340.     As  to  amending  the  complaint  by  bring- 
ing in  parties,  scq  Jennings  w.  Jennings,  2  Abb.  16. 

When  one  of  several  tenants  in  common  is  in  actual  possession, 
his  possession  will,  in  the  absence  of  any  act  of  ouster  on  his  part, 
inure  to  the  benefit  of  all  and  therefore  it  is  not  necessary  to 
allege  that  plaintiff  was  or  had  ever  been  in  possession.  Wain- 
fnan  v.  Hampton,  1 10  N.  Y.  429.  An  averment  of  ownership  in 
fee  was  all  that  was  required.  This  action  was  brought  before 
the  Code  of  Civil  Procedure. 


148  PARTITION. 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


Where  the  complaint  alleged  that  a  deed  made  by  plaintiff's 
ancestor  was  intended  as  a  mortgage  and  demanded  that  the  respec- 
tive interests  of  the  parties  be  established  and  premises  .sold, 
it  was  held  a  sufficient  statement  of  rights  and  interests  of  the 
parties  under  this  section  and  enough  to  present  a  question  as  to 
such  interests  for  the  court  to  determine.  Bell  v.  Gitterc,  9  N.  Y. 
Sup.  400;  S.  c.  30  St.  Rep.  219,  citing  Peck  v.  New  York  &  New 

Jersey  R.  R.Co.^S^-^'-  246. 

The  code  contemplated  that  the  rights  of  different  defendants 
may  not  stand  upon  the  same  basis,  and  the  fact  that  the  parties 
may  not  be  interested  in  the  same  question  does  not  affect  the 
validity  of  the  complaint.  Ellerson  v.  Wescott,  88  Hun,  389,  citing 
Townsendv.  Bogert,  126  N.  Y.  370. 

A  complaint  in  an  action  for  partition  brought  by  an  heir,  may 
properly  unite  therewith  causes  of  action  to  set  aside  a  will  of  the 
testator  and  mortgages  executed  by  him,  on  the  ground  that 
they  were  procured  by  undue  influence  where  all  such  instruments 
were  obtained  at  the  same  time,  in  pursuance  of  the  same  fraudu- 
lent scheme.  Best  v.  Zeh,  82  Hun,  232,  63  St.  Rep.  549,  31  Supp. 
230,  146  N.  Y.  363. 

The  complaint  in  an  action  of  partition  on  the  ground  that  a 
devise  in  the  will  of  the  ancestor  of  the  party  is  void,  for  want  of 
proper  execution,  mental  incapacity  and  undue  influence,  may 
also  allege  that  the  devisee  procured  the  death  of  the  testator  and 
is  therefore  incompetent  to  take  under  the  will.  Ellersoji  v.  West- 
eott,  88  Hun,  389,  34  Supp.  813,  68  St.  Rep.  751. 

Allegations  in  a  complaint  that  plaintiff  and  defendants  are  seized 
and  possessed,  held  a  sufficient  allegation  of  the  possession  of  the 
plaintiff.  Bale7i  v.  Jacquelin,  67  Hun,  311,  51  St.  Rep.  643,  22 
Supp.  193. 

A  complaint  which  avers  plaintiff's  ownership  in  common  with 
certain  defendants  and  alleged  that  other  defendants  "  claim 
some  right,  title  or  interest  in  said  premises,  the  exact  nature  of 
which  is  unknown  to  the  plaintiff  and  which  is  a  cloud  upon  the 
title  to  said  premises,"  and  asked  that  they  be  adjudged  to  have 
no  interest  in  the  property,  is  not  demurrable  on  the  ground  that 
it  states  no  cause  of  action.  Tozvnsend  v.  Bogert,  126  N.  Y. 
370»  37  St.  Rep.  488,  reversing  35  St.  Rep.  76,  20  Civ.  Pro.  R. 
262,  12  Supp.  461. 


I 


PARTITION.  149 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


Precedent  for   Complaint  —  Short  Form. 

SUPREME  COURT  — Ulster  County. 


SAMUEL  HOPPENSTEAD 

agst. 

LOUISA   HOPPENSTEAD,   SOLOMON  C. 
HOPPENSTEAD.  et  al. 


The  complaint  of  the  plaintiff  shows  to  this  court: 

First.  That  James  Hoppenstead,  a  citizen  of  the  State  of  New 
York,  died  at  the  town  of  Gardiner,  Ulster  county,  on  or  about  the 
2ist  day  of  January,  1887,  intestate,  and  at  the  time  of  his  death  the 
said  James  Hoppenstead  was  seized  in  fee  simple  of  the  following 
piece  or  parcel  of  land:     (Insert  description.) 

Second.  That  the  said  James  Hoppenstead  left  the  following  heirs- 
at-law  and  legal  representatives,  his  children,  and  no  others,  viz: 
Samuel  Hoppenstead,  Solomon  C.  Hoppenstead,  John  Hoppen- 
stead, Margaret  C.  Holwick  and  Sarah  Smith,  who  are  seized  of  the 
said  premises  as  tenants  in  common. 

Third.  That  the  plaintiff,  Samuel  Hoppenstead,  and  the  defend- 
ants, Solomon  C.  Hoppenstead,  John  Hoppenstead,  Margaret  C. 
Holwick  and  Sarah  Smith,  are  seized  in  fee  simple,  each  of  the  undi- 
vided one-fifth  part  of  said  premises,  the  shares  of  Samuel  Hoppen- 
stead, Solomon  Hoppenstead  and  John  Hoppenstead  being  subject 
to  the  inchoate  rights  of  dower  of  their  respective  wives,  to-wit: 
Louisa,  wife  of  Samuel  Hoppenstead,  Minerva,  wife  of  Solomon  C. 
Hoppenstead,  and  Julia, wife  of  John  Hoppenstead,  and  the  shares 
of  Margaret  C.  Holwick  and  Sarah  Smith  being  subject  to  the  mari- 
tal rights  of  their  respective  husbands,  Valentine  Holwick  and 
Moses  Smith. 

Fourth.  That  the  defendant  Valentine  Holwick  is  a  tenant  of  said 
premises  and  has  no  other  interest  except  as  hereinbefore  stated. 

Fifth.  That  the  parties  to  this  action  own  no  other  real  estate,  as 
tenants  in  common,  and  all  the  parties  reside  in  the  State  of  New 
York,  and  are  of  full  age. 

Sixth.  That  there  are  no  general  or  specific  liens  against  any  or 
either  of  the  undivided  shares  in  said  premises  of  any  or  either  of 
the  parties  to  this  action,  as  this  plaintiff  is  informed  and  believes. 

Wherefore  the  plaintiff  asks  judgment  for  a  partition  and  division 
of  said  premises  according  to  the  respective  rights  of  said  parties; 
or,  if  partition  cannot  be  had  without  material  injury  to  those  inter- 
ested, then  for  a  sale  of  said  premises  and  a  division  of  the  proceeds 
between  the  parties  according  to  their  respective  rights,  after  pay- 
ment of  the  costs  of  this  action,  and  that  the  plaintiff  have  such 
other  or  further  relief  as  maybe  just. 

HECTOR  SEARS, 

Plaintiff's  Attorney. 


IgO  PARTITION. 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


Precedent  for  Complaint  where  there  are  Infant  Defendants 

and  Dower  Interest. 

SUPREME  COURT  — Ulster  County. 


AM  AS  A  HUMPHREY 


agst. 


EGLIN    HORNBECK,    BIANCA     OSTER- 
HOUDT, 


The  complaint  of  the  above  plaintiff  respectfully  shows  to  the 
court  that  the  parties  to  this  action  are  seized  in  fee  simple,  as  ten- 
ants in  common,  of  the  following  pieces  or  parcels  of  land,  with  the 
appurtenances,  situated  in  the  town  of  Rochester,  Ulster  county.  New 
York  (here  insert  description);  that  one  Joseph  K.  Hornbeck  died 
intestate,  seized  and  possessed  of  said  property  about  the  year  1880, 
leaving  surviving  him  as  his  only  children  and  heirs-at-law,  Angeline, 
wife  of  William  S.  Harp,  Bianca,  wife  of  Elias  Osterhoudt,  Aurelia 
Hornbeck,  Mary  A.  Hornbeck  and  George  K.  Hornbeck,  and  an- 
other infant  daughter,  who  has  since  died,  and  his  widow,  Eglin 
Hornbeck,  the  mother  of  said  deceased  child,  and  of  the  other  un- 
married children  above  named;  that  the  said  Aurelia  Hornbeck, 
Mary  A.  Hornbeck  and  George  K.  Hornbeck  are  infants  and  have 
no  general  or  testamentary  guardian,  and  that  the  other  parties  to 
the  action  are  of  full  age;  that  on  the  15th  day  of  November,  1883, 
the  said  Angeline  Harp  and  William  S.  Harp,  her  husband,  by  a 
deed  bearing  date  on  that  day,  conveyed  all  their  interest  in  .said 
property  to  Amasa  Humphrey,  the  above  plaintiff;  that  the  above 
plaintiff  is  the  owner  of  an  undivided  one-fifth  part  of  said  premises 
subject  to  the  dower  interest  thereon  of  the  defendant  Eglin  Horn- 
beck, and  subject  to  the  life  estate  of  said  Eglin  Hornbeck,  in  an 
undivided  one-sixth  part  thereof  as  the  mother  of  said  deceased  child, 
and  subject  to  the  inchoate  right  of  dower  of  the  defendant  Rebecca 
Humphrey,  and  the  said  Rebecca  has  such  right  of  dower  as  afore- 
said in  said  one-fifth  part;  that  the  defendant  Bianca  Osterhoudt  is 
the  owner  of  an  undivided  one-fifth  part  of  said  premises,  subject  to 
the  dower  interest  therein  of  the  defendant  Eglin  Hornbeck,  and 
also  subject  to  the  life  interest  of  said  Eglin  Hornbeck  in  an  undi- 
vided one-sixth  thereof  as  the  mother  of  said  deceased  child,  and 
subject  also  to  whatever  interest  her  husband,  Elias  P.  Osterhoudt, 
may  have  in  her  said  interests  as  such  husband,  and  said  defendant 
Elias  P.  Osterhoudt,  has  such  interest,  if  any,  which  the  law  gives 
him  in  said  share  of  his  wife  as  her  husband;  that  the  defendants 
Aurelia  Hornbeck,  Mary  A.  Hornbeck  and  George  K.  Hornbeck  are 
each  the  owner  of  an  undivided  one-fifth  part  of  said  premises,  sub- 
ject to  the  dower  interest  thereon  of  the  defendant  Eglin  Hornbeck, 
and  also  subject  to  the  life  estate  of  said  Eglin  Hornbeck  in  an  undi- 
vided one-sixth  part  thereof  as  the  mother  of  said  deceased  child; 


PARTITION.  151 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


that  the  defendant  Eglin  Hornbeck  has  a  dower  interest  in  the  whole 
property,  and  a  life  interest  in  an  undivided  one-sixth  thereof,  sub- 
ject to  such  dower  interest  ;  that  the  premises  before  described  is  the 
only  real  estate  within  this  State  owned  by  the  parties  to  this  action 
in  common,  and  that  said  real  estate  is  of  the  value  of  about 
$15,000,  as  the  plaintiff  is  informed  and  believes;  that  all  the  par- 
ties to  this  action  are  residents  of  the  State  of  New  York ;  that,  as 
this  plaintiff  is  informed  and  believes,  there  are  no  general  or  spe- 
cific liens  or  incumbrances  on  the  said  premises,  or  upon  or  against 
the  undivided  interest  therein  of  any  of  the  parties  to  this  action, 
and  that  there  are  no  liens  upon  said  premises,  or  any  part  thereof. 
Wherefore  the  plaintiff  demands  the  judgment  of  this  court,  that 
the  part  or  share  of  said  premises  belonging  to  this  plaintiff,  and  the 
part  or  share  of  each  of  the  other  parties  to  this  action  of,  in  or  to 
said  premises  may  be  ascertained  and  determined  by  and  under  the 
direction  of  this  court,  and  that  a  partition  and  division  thereof  may 
be  made  between  the  said  plaintiff  and  the  other  parties  to  this 
action,  according  to  the  respective  rights  and  interests  of  each 
therein;  and  that  a  commission  of  partition  may  be  issued  out  of 
and  under  the  seal  of  this  court,  and  proper  commissioners  may  be 
appointed  for  the  purpose  of  making  a  partition  of  said  premises; 
or  in  case  a  partition  thereof,  or  of  any  part  thereof,  cannot 
be  made  without  great  prejudice  to  the  owners,  that  the  same, 
or  such  part  thereof  as  cannot  be  divided,  may  be  sold  by  and 
under  the  direction  of  this  court,  and  that  the  proceeds  of  the 
sale,  after  paying  the  costs  and  charges  of  this  action,  may  be  divided 
among  the  owners  thereof  according  to  their  several  rights  and 
interests  therein,  and  to  that  end  that  the  rignts  and  interests  of  the 
parties  interested  in  the  said  premises,  or  in  the  proceeds  of  the  sale 
thereof,  may  be  ascertained  and  determined  by  the  judgment  of  this 
court,  and  for  such  further  or  other  judgment  or  relief  as  may  be 
just  and  agreeable  to  equity, 

D.  W.  OSTRANDER, 

Plaintiff's  Attorney. 


152 


PARTITION. 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


Amended   and   Supplemental    Complaint,   setting  out   void 

Devise.* 

SUPREME   COURT  — Ulster  County. 


Rachel  A.  Kane 

agsL 

Charlotte  Cranse,  Elizabeth  Mulford  and  John  Mul- 
ford,  her  husband,  Mary  J.  Cooley  and  William, 
her  husband,  Isaac  Hasbrouck  and  Laura,  his 
wife,  Benjamin  B.  Hasbrouck  and  Elizabeth,  his 
wife,  Ellen  C.  Hasbrouck,  Elizabeth  D.  Smedes 
and  John  T.,  her  husband,  Charlotte  T.  Terwil- 
liger  and  Abram  D.,  her  husband,  George  W. 
Ells  and  Sarah,  his  wife,  Mary  H.  DuBois  and 
John  K.,  her  husband,  and  Maggie  Cameron  and 
Herman,  her  husband,  Rebecca  Tears  and  her 
husband,  Josephine  Johnson  and  Augusta  John- 
son, Irving  H.  Loughran,  as  Administrator  of, 
etc.,  of  Jane  Hasbrouck,  Deceased. 


The  plaintiff  herein  for  an  amended  and  supplemental  complaint 
respectfully  shows  to  this  court: 

First.  That  on  or  about  the  i8th  day  of  February,  1887,  Jane 
Hasbrouck,  being  the  owner  in  fee  of  the  real  property  hereinafter 
described,  died  intestate  as  to  the  same,  which  real  property  is  de- 
scribed as  follows:  All  that  certain  piece  or  parcel  of  land  situated, 
lying  and  being  in  the  town  of  Shawangunk,  in  the  county  of  Ulster 
and^'state  of  New  York,  and  bounded  and  described  as  follows:  On 
the  west  by  lands  of  John  G.  Borden,  on  the  east  by  lands  of  John 
G.  Borden,  and  on  the  north  by  lands  of  John  G.  BoMen,  and  on 
the  south  by  lands  of  William  Hunt  and  William  Snyder,  and  being 
the  same  premises  upon  which  Benjamin  Hasbrouck  lived  and  owned 
during  his  lifetime,  and  owned  by  Jane  Hasbrouck  in  her  lifetime, 
and  which  contains  one  hundred  and  six  acres  of  land,  be  the  same 
more  or  less.  Catherine  Johnson,  a  sister  who  has  died  since  the 
commencement  of  this  action,  which  was  originally  brought  by  her 
as  plaintiff,  and  left  her  last  will  and  testament  in  and  by  which  she 
devised  and  bequeathed  her  entire  real  and  personal  estate  to  Rachel 
A.  Kane,  this  plaintiff,  Maggie  Cameron,  Rebecca  Tears,  Josephine 
Johnson  and  Augusta  Johnson,  daughters  of  said  Catherine  Johnson, 
deceased,  and  defendants  in  this  action. 

Second.    Eliza  Ronk,  a  sister  of  Jane  Hasbrouck,  deceased,  who 
has  died  since  the  commencement  of  this  action,  leaving  her  last  will 


*This    complaint    also    makes    personal    representative    of    decedent    a    party. 

See  §  1538. 


PARTITION.  153 

Art.  6.     Complaint  to  State  Interests  of  Parties. 

and  testament  in  and  by  which  she  devised  and  bequeathed  her  entire 
real  and  personal  property  to  the  defendant  Benjamin  B.  Hasbrouck. 

Third.  Elsie  Ells,  a  sister  of  Jane  Hasbrouck,  deceased,  who  iias 
died  since  the  commencement  of  this  action,  leaving  her  last  will 
and  testament  in  and  by  which  she  devised  and  bequeathed  her 
entire  real  and  personal  property  to  the  defendants  Elizabeth  D. 
Smedes,  Charlotte  T.  Terwilliger,  George  W.  Ells  and  Mary  H.  Du- 
Bois.  The  plaintiff  further  shows  that  the  said  Jane  Hasbrouck  left 
as  heirs  the  following  named  persons  in  whom  the  title  of  the  aforesaid 
premises  vested.  The  plaintiff,  Rachel  A.  Kane,  who  is  a  niece  of 
said  Jane  Hasbrouck,  deceased;  the  defendants,  Charlotte  Cranse, 
Elizabeth  Mulford,  Mary  J.  Cooley,  Isaac  Hasbrouck,  Benjamin  R. 
Hasbrouck,  Ellen  C.  Hasbrouck,  Elizabeth  D.  Smedes,  Charlotte  T. 
Terwilliger,  George  W.  Ells,  Mary  H.  DuBois,  Maggie  Cameron, 
Rebecca  Tears,  Josephine  Johnson  and  Augusta  Johnson,  all  nieces 
and  nephews  of  said  Jane  Hasbrouck,  deceased.  That  heretofore 
and  on  the  14th  day  of  June,  1887,  Catherine  Johnson,  now  deceased, 
and  the  defendant  Irving  H.  Loughran  were  duly  appointed  admin- 
istrators of,  etc.,  of  Jane  Hasbrouck,  by  the  Surrogate  Court  of 
Ulster  county,  and  the  defendant  Loughran  is  the  sole  surviving 
administrator  of  said  deceased. 

Fourth.  The  plaintiff  further  shows  to  the  court  that  the  defend- 
ant Benjamin  B.  Hasbrouck,  since  the  commencement  of  this 
action,  produced  an  instrument  in  writing  purporting  to  be  the  last 
will  and  testament  of  said  Jane  Hasbrouck,  deceased,  in  words  and 
figures  following: 

I,  Jane  Hasbrouck,  of  the  town  of  Shawangunk,  Ulster  county 
and  State  of  New  York,  mindful  of  the  uncertainty  of  human  life, 
do  make,  publish  and  declare  this  to  be  my  last  will  and  testament 
in  the  manner  following: 

After  my  just  debts  are  paid  and  satisfied,  I  give,  devise  and  be- 
queath my  real  estate  and  personal  property  as  follows,  viz: 

1.  I  give  and  bequeath  to  my  friend  John  D.  DuBois  the  sum  of 
$300,  to  be  paid  to  him  in  one  year  after  my  death. 

2.  I  give,  devise  and  bequeath  to  my  nephew  Benjamin  B.  Has- 
brouck all  my  real  estate  lying  and  being  in  the  town  of  Shawan-' 
gunk,  in  the  county  of  Ulster,  New  York,  and  containing  about  one 
hundred  acres  of  land  to  him  and  his  heirs  forever. 

3.  All  the  rest  and  residue  and  remainder  of  all  my  personal  estate 
I  give,  devise  and  bequeath  to  my  nephew  Benjamin  B.  Hasbrouck, 
his  heirs  and  assigns  forever. 

4.  1  hereby  appoint  and  nominate  my  nephew  Benjamin  B.  Has- 
brouck sole  executor  of  this  my  last  will  and  testament,  hereby 
revoking  any  former  wills  by  me  made,  and  I  hereby  authorize  and 
empower  my  said  executors  to  compromise  and  settle  any  claims  or 
demands  which  may  be  against  or  in  favor  of  my  estate. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  this  22d 
day  of  March  in  the  year  1881. 

JANE  HASBROUCK.  [L.   S.] 


154  PARTITION. 


Art.  6.  Complaint  to  State  Interests  of  Parties. 


The  foregoing  instrument  was  on  this  22d  day  of  March,  in  the 
year  1881,  subscribed  by  Jane  Hasbrouck,  the  testatrix  above 
named,  in  the  presence  of  each  of  us,  and  at  the  same  time  she  de- 
clared to  each  of  us  that  the  said  instrument  was  her  last  will  and 
testament,  and  she  requested  each  of  us  to  sign  our  names  thereto 
as  subscribing  witnesses,  which  we  did  in  her  presence  and  in  the 
presence  of  each  other.  (Signatures.) 

And  propounded  the  same  for  probate  in  Surrogate's  Court  of  the 
county  of  Ulster,  on  due  notice  to  the  parties  interested  therein,  that 
objections  thereto  were  filed  on  behalf  of  the  heirs-at-law,  and  hear- 
ing thereon  had  from  time  to  time  and  such  proceedings  had,  that 
an  order  has  been  duly  entered  in  said  court  denying  the  application 
for  probate  of  such  alleged  will  and  fixing  the  costs,  charges,  counsel 
fees  and  expenses  thereof,  and  directing  the  same  to  be  paid  to  the 
administrator  of  said  Jane  Hasbrouck,  the  defendant  Irving  H. 
Loughrau;  that  as  this  plaintiff  is  informed  and  believes,  the  per- 
sonal estate  is  entirely  inadequate  and  insufficient  to  pay  the  said 
costs,  charges  and  expenses  which  have  been  incurred  for  and  on 
behalf  of  the  heirs-at-law  of  the  said  Jane  Hasbrouck,  the  parties  to 
this  action,  and  for  the  purpose  of  proving  and  properly  described 
in  the  complaint. 

That  the  said  paper  so  purporting  to  be  the  last  will  and  testa- 
ment of  Jane  Hasbrouck,  deceased,  is  not  in  truth  and  in  fact  the 
last  will  and  testament  of  said  Jane  Hasbrouck^^  deceased,  and  that 
the  same  was  never  subscribed  or  executed  by  her,  and  is  in  nowise 
her  act  or  deed,  and  conveys  no  right,  title  or  interest  of,  in  and 
to  her  property,  but  that  the  pretended  signature  thereto  is  not 
her  act  or  deed,  nor  done  under  or  by  her  direction,  and  the  same 
was  never  acknowledged  or  in  any  wise  attested  by  her,  and  said 
paper  is  null,  void  and  of  no  effect. 

Sixth.  The  plaintiff  further  shows  that  the  defendant,  Charlotte 
Cranse,  Elizabeth  Mulford,  Mary  J.  Cooley,  Isaac  Hasbrouck,  Benja- 
m.in  B.  Hasbrouck,  Ellen  C.  Hasbrouck,  Elizabeth  D.  Smedes,  Char- 
lotte T.  Terwilliger,  George  W.  Ells,  Mary  H.  DuBois,  Maggie 
Cameron,  Rebecca  Tears,  Josephine  Johnson  and  Augusta  Johnson 
and  this  plaintiff  are  seized  in  fee  simple  and  entitled  to  the  above 
described  premises  as  tenants  in  common,  and  that  their  interests 
and  rights  therein  are  as  follows: 

1.  That  the  said  defendants  Charlotte  Cranse,  Elizabeth  Mulford, 
Mary  J.  Cooley  and  Isaac  Hasbrouck,  are  each  seized  in  fee  and 
entitled  to  the  one  undivided  one-twentieth  part  thereof,  as  children 
and  next  of  kin  of  Jacob  Hasbrouck,  who  was  a  brother  of  Jane 
Hasbrouck,  deceased. 

2.  That  the  said  defendant,  Benjamin  B.  Hasbrouck,  is  seized  in 
fee  and  entitled  to  the  one  undivided  three-tenths  part  thereof,  as  a 
son  and  next  of  kin  of  Henry  H.  Hasbrouck,  deceased,  who  was  a 
brother  of  Jane  Hasbrouck,  deceased,  and  taking  the  interest  which 
is  one-fifth  under  the  will  of  Eliza  Ronk,  deceased,  a  sister  of  Jane 
Hasbrouck,  deceased.  Si 

3.  That  the  said  Ellen  C.  Hasbrouck  is  seized  and  entitled  to  the 


PARTITION.  155 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


one  undivided  one-tenth  part  thereof,  as  a  daughter  and  next  of  kin 
of  Henry  H.  Hasbrouck,  deceased,  a  brother  of  Jane  Hasbrouck, 
deceased. 

4.  That  the  said  defendants,  Ehzabeth  D.  Smedes,  Charlotte  T. 
Terwilliger,  George  W.  Ells,  and  Mary  H.  DuBois,  are  each  seized 
in  fee  and  entitled  to  the  one  undivided  one-twentieth  part  thereof. 

5.  That  the  said  plaintiff,  and  the  defendants  Maggie  Cameron, 
Rebecca  Tears,  Josephine  Johnson  and  Augusta  Johnson,  are  each 
seized  in  fee  and  entitled  to  the  one  undivided  one-twenty-fifth  part 
thereof,  as  children  and  next  of  kin  of  Catherine  Johnson,  and  by 
the  devise  in  the  last  will  and  testament  of  said  Catherine  Johnson, 
deceased,  who  was  a  sister  of  Jane  Hasbrouck,  deceased. 

Seventh.  The  said  plaintiff  further  shows  that  she  and  all  of  the 
defendants  in  this  action  are  of  full  age.  That  the  defendant  Laura 
Hasbrouck  is  the  wife  of  Isaac  Hasbrouck;  that  Elizabeth  Has- 
brouck is  the  wife  of  Benjamin  B.  Hasbrouck;  that  Sarah  Ells  is 
the  wife  of  George  W.  Ells,  and  are  each  entitled  to  inchoate  right 
of  dower  in  the  interests  of  the  said  defendants  Isaac  Hasbrouck, 
Benjamin  C.  Hasbrouck  and  George  W.  Ells,  their  husbands. 

Eighth.  That  the  defendant  John  Mulford  is  the  husband  of 
Elizabeth  Mulford;  that  William  Cooley  is  the  husband  of  Mary  J. 
Cooley;  that  John  T.  Smedes  is  the  husband  of  Elizabeth  D. 
Smedes;  that  Abram  D.  Terwilliger  is  the  husband  of  Charlotte  T. 
Terwilliger;  that  John  K.  DuBois  is  the  husband  of  Mary  H.  Du- 
Bois; that  Herman  Cameron  is  the  husband  of  Maggie  Cameron; 
that  Christopher  Tears  is  the  husband  of  Rebecca  Tears. 

Ninth.  The  plaintiff  further  shows  that  the  personal  property 
belonging  to  said  Jane  Hasbrouck,  deceased,  at  the  time  of  her 
death,  will  not  be  sufficient  to  pay  and  discharge  her  debts  in  full, 
and  that,  as  this  plaintiff  is  informed  and  believes,  the  debts  remain- 
ing unpaid  after  applying  thereon  the  personal  property  of  deceased, 
are  a  charge  and  lien  upon  the  real  estate  hereinbefore  described; 
that  the  rights  and  interests  of  the  parties  therein,  as  hereinbefore 
set  forth,  are  subject  to  the  payment  of  said  debts;  that  the  per- 
sonal estate  in  the  hands  of  the  administrator  is  inadequate  to  the 
proper  and  necessary  expense  of  administration  and  accounting. 
Wherefore  plaintiff  asks  judgment: 

First.  That  the  pretended  devise  to  Benjamin  B.  Hasbrouck,  con- 
tained in  the  paper  purporting  to  be  the  last  will  and  testament  of 
Jane  Hasbrouck,  deceased,  be  declared  null  and  void,  and  the  instru- 
ment adjudged  not  to  be  the  act  or  deed  of  said  Jane  Hasbrouck, 
and  m  no  wise  to  affect  the  disposition  of  her  real  property. 

Second.  That  the  defendant  Irving  H.  Loughran,  be  adjudged  to 
be  paid  out  of  the  proceeds  of  the  sale  of  premises  herein,  the  costs, 
charges,  counsels'  fees  and  expenses  adjudged  and  decreed  by  the 
Surrogate  Court  of  Ulster  county  to  be  paid  by  him  to  the  respec- 
tive parties  upon  the  contest,  on  the  presentation  for  probate  of  the 
said  alleged  will  of  Jane  Hasbrouck,  deceased,  for  distribution  by 
him  to  the  parties  entitled  thereto,  under  and  by  virtue  of  such 
decree. 

Third.   That  a  partition  and  division  be  made  of  said  premises 


156 


PARTITION. 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


according  to  the  respective  rights  of  said  parties,  or  if  partition  can- 
not be  had  without  material  injury  to  those  rights,  then  for  a  sale  of 
said  premises  and  a  division  of  the  proceeds  between  the  parties 
according  to  their  respective  rights. 

Fourth.  That  this  court  ascertain  and  determine  the  amount  of  the 
debts  of  the  said  Jane  Hasbrouck,  deceased,  which  are  a  charge 
against  her  real  estate  and  personal  property  of  deceased  applicable 
thereto,  and  that  the  administrator  aforesaid  be  decreed  and 
adjudged  to  file  an  account  of  his  proceedings  as  such  in  this  court, 
and  to  apply  the  personal  estate  pro  rata  to  the  payment  of  such 
debts,  after  payment  of  the  expenses  of  administration;  and  that 
upon  making  such  payment  he  be  discharged  from  further  liability 
as  such  administrator,  and  that  the  balance  of  such  debts,  which 
may  be  chargeable  against  the  real  estate  of  such  deceased,  be  paid 
by  the  referee  out  of  the  proceeds  thereof,  next  after  payment  of 
costs  and  expenses  of  this  action. 

ALVAH  S.    NEWCOMB, 

Attorney  for  Plaintiff. 


Precedent  for  Complaint  —  Void  Devise  —  Dower  Interest  — 
Absent,  Unknown  and  Infant  Defendants. 

Supreme   Court  of  the  State  of  New  York  — County  of 
New  York. 


Michael  Bowen,  Plaintiff, 


agst. 


"143  N.  Y.  349- 


Michael  Sweeney,  Catherine  Gallagher  and  Francis 
Gallagher,  her  husband;  Joseph  Sweeney  and 
Mary  Sweeney,  his  wife;  Patrick  Sweeney  and 
Ann  Sweeney,  his  wife;  Mary  O'Donnell,  widow; 
Barney  Sweeney  and  Helen  Sweeney,  his  wife 
(the  plaintiff  being  ignorant  of  the  names  of  the 
said  wives,  they  are  designated  by  fictitious 
names);  the  said  Michael,  Catherine,  Joseph, 
Patrick,  Mary  and  Barney,  being  children  of  Ann 
Sweeney,  deceased,  sister  of  the  testator  John 
Bowen,  deceased;  Eliza  Sweeney,  Robert  Sweeney 
and  Eleanor  Sweeney,  the  widow,  children  and 
heirs-at-law  of  John  Sweeney,  deceased,  a  son  of 
said  Ann  Sweeney,  deceased  (the  plaintiff  being 
ignorant  of  the  names  of  the  said  widow,  chil- 
dren and  heirs-at-law,  they  are  designated  by 
fictitious  names),  et  al,  Defendants. 


The  plaintiff  above  named  by  this,  his  complaint,  respectfully 
states  upon  information  and  belief  as  follows: 

First.  That  John  Bowen,  late  of  the  city,  county  and  State  of 
New   York,  a  brother  of  the   plaintiff  Michael   Bowen,  was  at   the 


PARTITION. 


157 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


time  of  making  his  last  will  and  testament  as  hereinafter  mentioned 
and  also  at  the  time  of  his  death,  seized  in  fee  simple  absolute  and 
in  possession  of  all  those  certain  lots,  pieces  or  parcels  of  ground 
situate,  lying  and  being  in  the  Seventeenth  ward  of  the  city  of 
New  York  and  known  as  lots  numbered  three  hundred  and  forty-four 
(344)  and  three  hundred  and  forty-five  (345)  on  "  map  of  lands  in 
the  city  of  New  York  lying  between  Tenth  and  Twentieth  streets  and 
between  Second  avenue  and  East  river,  devised  by  Peter  Girard 
Stuyvesant,  deceased,  to  Julia  Stuyvesant  and  others,  Novem- 
ber II,  1849,"  together  bounded   and  described  as  follows: 

(Insert  description.) 
and  that  being  so  seized  and   possessed   of  the  said   property,  the 
said  John  Bowen  died  on  or  about  the  14th  day  of  March,  1863. 

Second.  That  the  said  John  Bowen  in  his  lifetime  to-wit,  on  or 
about  the  twelfth  day  of  June,  1862,  duly  made  and  published  his 
last  will  and  testament  in  manner  and  form  as  required  by  law  to 
pass  real  and  personal  property,  and  which  said  will  was  and  is  in  the 
words  and  figures  as  follows,  namely: 

(Insert  will.) 

Third.  That  the  said  will  of  the  said  John  Bowen  was  duly  proved 
before  the  surrogate  of  the  county  of  New  York,  to  whom  jurisdic- 
tion in  that  behalf  belonged,  as  a  will  of  real  and  personal  property, 
and  the  said  surrogate  duly  admitted  the  said  will  to  probate  and 
duly  issued  letters  testamentary  thereon  to  the  executors  therein 
named,  who  "duly  qualified  as  such,  namely,  to  the  defendant  John 
A.  McLaughlin  on  the  9th  day  of  April,  1863,  on  which  day  the  said 
will  and  decree  admitting  the  same  to  probate  was  duly  recorded  in 
the  office  of  the  said  surrogate  and  to  the  plaintiff  on  the  26th  day 
of  February,  1886. 

Fourth.  That  the  said  testator  John  Bowen,  left  him  surviving  as 
his  only  children  and  descendants,  his  daughter  Mary  T.  Bowen, 
and  two  sons  Francis  J.  Bowen  and  Thomas  F.  Bowen. 

Fifth.  That  after  the  death  of  the  said  testator,  John  Bowen,  and 
on  the  first  day  of  November,  1863,  his  said  son,  Francis  J.  Bowen, 
who  was  named  in  the  said  will  of  the  said  John  Bowen,  died  in  the 
city  and  county  of  New  York,  where  he  then  resided,  unmarried  and 
without  issue. 

Sixth.  That  the  said  Francis  J.  Bowen,  in  his  lifetime,  to-wit:  on 
or  about  the  26th  day  of  October,  1863,  duly  made  and  published  his 
last  will  and  testament  in  manner  and  form  as  required  by  law,  to 
pass  real  and  personal  property,  in  and  by  which  will,  after  bequeath- 
ing a  legacy  of  one  hundred  and  twenty-five  dollars  and  his  house- 
hold furniture,  he  gave,  devised  and  bequeathed  to  his  uncle,  the 
plaintiff,  Michael  Bowen,  all  the  rest,  residue  and  remainder  of  his 
property,  real  and  personal,  of  every  name,  kind  and  description; 
and  that  the  said  will  was  and  is  in  the  words  and  figures  as  follows, 
namely : 

(Insert  will.) 

Seventh.  That  the  said  will  of  the  said  Francis  J.  Bowen  was  duly 
proved  before  the  surrogate  of  the  county  of  New  York,  to  whom 
jurisdiction  in  that  behalf  belonged,  and  afterwards  on  or  about  the 


158  PARTITION. 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


15th  day  of  August,  1864,  the  said  will  was  duly  admitted  to  probate 
by  the  said  surrogate,  and  was  thereupon  with  the  decree  admitting 
the  same  to  probate,  duly  recorded  in  the  office  of  the  said  surrogate. 
Eighth.  That  the  said  Thomas  F.  Bowen,  the  other  son  of  the  said 
testator  John  Bowen,  deceased,  died  in  the  city  of  New  York;  where 
he  then  resided,  in  or  about  the  month  of  April,  1868,  intestate  and 
without  issue,  but  leaving  a  widow  who  has  since  deceased. 

Ninth.   That  the  said   Mary  T.  Bowen,  the  daughter  of  the  said 
testator,  John  Bowen,  deceased,  intermarried  with  one  James  Hatten 
and  she  survived  him,  and  after  his  death  and  on  or  about  the  27th 
day  of  August,  1885,  the  said  Mary  T.  Bowen  died  intestate,  unmar- 
ried and  without  issue.     That  the  said  Mary  Teresa  Hatten,  above 
mentioned  as  Mary  T.  Bowen,  on  or  about  the   17th  day  of  April, 
1880,  signed  a  certain  paper  writing  which  purported  to  be  her  last 
will,  and  testament  in  and  by  which  she  purported  to  will,   devise 
and  bequeath  all  her  property  and  estate  of  every  kind  and  descrip- 
tion, both  real  and  personal,  of  which  she  might  die  seized  or  pos- 
sessed, to  the  defendants  Michael  Sweeney  and  Catherine  Gallagher, 
to   have   and   to   hold  to  them  and  to  be  divided  equally  between 
them,  share  and  share  alike,  their  heirs  forever,  and  in  and  by  which 
said  paper  writing  she  purported  to  nominate,  constitute  and  appoint 
the  defendant  Michael  Sweeney  to  be  the  executor  of  her  last  will 
and  testament.     That  the  apparent  devise  made,  or  claimed  to  be 
made  by  the  said  Mary  Teresa  Hatten,  in  and  by  said  paper  writing 
which  purports  to  be  her  last  will  and  testament,  is  void.     That  the 
said  devise  is  void  in  as  much  as  the  said  paper  writing  was  not  exe- 
cuted by  the  said  Mary  Teresa  Hatten  in  the  manner  provided  by 
law  for  the  due  execiition  of  a  last  will  and  testament,  in  that  the 
said  Mary  Teresa   Hatten   could  not  read  writing  and  did  not  read 
the  said  paper  writing  before  she  signed  the  same  or  before  the  same 
was  signed  by  John  R.  Hobble  and  Charles  H.  Reed,  whose  names 
are  subscribed  thereto  as  witnesses,  and  because  the  same  was  not 
read  to  her  or  in  her  hearing  before  the  same  was  signed  or  because 
the  said  Mary  Teresa  Hatten  did  not  know  when  she  signed  the  said 
paper  writing  that  the  same  was  her  will  or  what  the  contents  thereof 
were,  and  because  her  signature  thereto  was  obtained  from  her  by 
undue   influence,    exercised   upon   her  by    the  defendants    Michael 
Sweeney,  Catherine  Gallagher  and  Francis  Gallagher,  some  or  one 
of  them.     That  the  said  paper  writing  was  obtained  from  the  said 
Mary  Teresa  Hatten  by  a  conspiracy  entered  into  by  the  defendants 
Michael  Sweeney  and  Catherine  Gallagher,  and  by  them  and  some 
other  person  or  persons  to  the  plaintiff  unknown,  for  the  purpose  of 
fraudulently  procuring  a  will  in  favor  of  the  said  Michael  Sweeney 
and  Catherine  Gallagher,  and  that  they  did  in  pursuance  of  the  said 
conspiracy  procure  the  said  paper  writing  to  be  signed  by  the  said 
Mary  Teresa  Hatten  and  that  the  said  apparent  devise  in  said  paper 
writing  made  is  therefore  void.     That  the  said  apparent  devise  is 
void  because  the  said  Mary  Teresa  Hatten  at  the  time  she  signed 
the  said  paper  writing  purporting  to  be  her  last  will  and  testament, 
did  not  have  testamentary  capacity  but  was   without  testamentary 
capacity. 


PARTITION.  159 


Art.  6.     Complaint  to  State  Interests  of  Parties. 

Tenth.  That  at  the  time  of  the  death  of  the  said  testator,  John 
Bowen,  on  the  14th  day  of  March,  1863,  as  aforesaid,  his  only- 
brothers  and  sisters  then  Uving  and  the  only  heirs  of  such  of  his 
brothers  and  sisters  as  were  then  dead,  were  the  following  named 
persons,  that  is  to  say:  The  plaintiff,  Michael  Bowen,  of  the  city  of 
New  York,  a  brother  of  the  said  testator,  John  Bowen,  deceased; 
Patrick  Bowen  of  Ballinamore,  county  of  Leitrim,  Ireland,  a  brother 
of  the  said  testator,  John  Bowen,  deceased;  Ann  Sweeney  of  said 
Ballinamore,  a  sister  of  the  said  testator,  John  Bowen,  deceased; 
Bridget  Ford,  of  said  Ballinamore,  a  sister  of  the  testator,  John 
Bowen,  deceased;  Bridget  Bowen,  of  said  Ballinamore,  a  daughter  of 
Thomas  Bowen,  deceased,  who  was  a  brother  of  the  testator,  John 
Bowen,  deceased;  Bridget  McNulty,  of  said  Ballinamore;  Mary 
Ann  Cane  and  Catherine  Ward,  now  of  New  York  city,  children 
of  Catherine  Reynolds,  deceased,  who  was  a  sister  of  the  said  testa- 
tor, John  Bowen,  deceased. 

Eleventh.  That  the  said  Mary  T.  Hatten,  the  last  surviving  child 
of  the  said  testator,  John  Bowen,  deceased,  at  the  time  of  her  death 
was  a  citizen  of  the  United  States  and  resided  in  the  State  of  New 
York,  and  left  her  surviving  no  lineal  descendants  nor  any  brother 
or  sister- or  child  or  children  or  issue  of  a  deceased  brother  or  sister, 
but  did  leave  her  surviving  the  following  named  persons,  her  only 
heirs-at-law,  namely:  the  plaintiff,  Michael  Bowen  of  the  city  of 
New  York,  a  brother  of  the  said  testator,  John  Bowen,  deceased; 
the  defendants  Michael  Sweeney,  Joseph  Sweeney,  Patrick  Sweeney, 
Barney  Sweeney,  Catherine  Gallagher  and  Mary  O'Donnell,  all  chil- 
dren of  said  Ann  Sweeney  of  Ballinamore,  county  of  Leitrim,  Ireland, 
who  was  a  sister  of  the  said  testator,  John  Bowen,  deceased;  the 
defendants  Robert  Sweeney  and  Eleanor  Sweeney,  children  and 
heirs-at-law  of  John  Sweeney,  deceased,  who  was  a  son  of  said  Ann 
Sweeney. 

Twelfth.  That  the  said  testator,  John  Bowen's  said  sisters  Ann 
Sweeney  and  Bridget  Ford,  and  his  said  brother,  Patrick  Bowen,  all 
of  whom  are  now  deceased,  never  were  residents  or  citizens  of  the 
United  States  of  America,  or  of  the  State  of  New  York,  and  they 
were  all  at  the  time  of  the  death  of  the  said  testator,  John  Bowen, 
deceased,  residents  of  Ireland,  and  subjects  of  the  Queen  of  Great 
Britain  and  Ireland,  and  aliens  of  the  United  States  of  America,  and 
of  the  State  of  New  York,  and  they  so  continued  respectively  till 
their  deaths  respectively;  and  the  said  John  Bowen's  said  nieces, 
the  defendants  Bridget  Bowen  of  said  Ballinamore,  a  daughter  of  the 
said  Thomas  Bowen,  deceased,  and  Bridget  McNulty  of  said  Balli- 
namore, a  daughter  of  said  Catherine  Reynolds,  deceased,  have 
always  resided  and  now  reside  in  Ireland,  and  are  aliens  and  sub- 
jects of  the  Queen  of  Great  Britain  and  Ireland,  and  never  were 
citizens  or  residents  of  the  United  States  or  of  the  State  of  New 
York,  and  his  nieces  the  said  Mary  Ann  Cane  and  Catherine  Ward, 
also  daughters  of  said  Catherine  Reynolds,  deceased,  never  v.ere 
residents  or  citizens  of  the  United  States  or  of  the  State  of  New 
York  until  after  the  death  of  the  said  testator,  John  Bowen, 
deceased. 


l6o  PARTITION. 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


Thirteenth.  That  at  the  time  of  the  death  of  the  testator,  John 
Bowen,  none  of  the  defendants  (not  including,  however,  John  A. 
McLaughlin,  executor,  as  aforesaid)  was  a  citizen  of  the  United 
States  of  America  nor  was  either  or  any  of  the  defendants  then 
capable  in  law  of  taking  or  holding  real  property  in  the  State  of  New 
York  by  descent,  purchase,  devise  or  otherwise. 

Fourteenth.  That  under  and  by  virtue  of  the  provisions  of  the 
said  will  of  the  said  testator,  John  Bowen,  the  plaintiff  and  the 
defendants  who  are  hereinafter  stated  to  be  so  seized,  are  seized 
and  possessed  of  the  said  lots  and  pieces  of  land  hereinbefore 
described,  as  tenants  in  common,  and  the  rights  and  interests  of  the 
plaintiff  and  of   the  said  defendants  therein  are  as  follows,  namely: 

The  plaintiff  is  seized  and  entitled  in  fee  simple  absolute  to  22-27 
undivided  parts  thereof. 

The  defendants,  Michael  Sweeney,  Catherine  Gallagher  and 
Joseph  Sweeney,  Patrick  Sweeney,  Barney  Sweeney  and  Mary 
O'Donnell,  are  each  of  them  seized  of  and  entitled  in  fee  simple 
absolute  to  1-297  undivided  parts  thereof,  the  share  of  the  said 
defendant,  Catherine  Gallagher  being  subject  to  the  tenancy  by  the 
curtesy  initiate  therein  of  her  husband,  the  defendant  Francis  Gal- 
lagher, and  he  has  said  interest  therein,  and  the  said  share  of  the 
said  defendant  Joseph  Sweeney  being  subject  to  the  inchoate  right 
of  dower  therein  of  his  wife,  the  defendant  Mary  Sweeney,  and  she 
has  said  interest  therein,  and  the  said  share  of  the  said  defendant 
Patrick  Sweeney  being  subject  to  the  inchoate  right  of  dower 
therein  of  his  wife  the  defendant,  Ann  Sweeney,  and  she  has  said 
interest  therein,  and  the  said  share  of  the  said  defendant,  Barney 
Sweeney,  being  subject  to  the  inchoate  right  of  dower  therein  of  his 
wife,  the  defendant  Helen  Sweeney,  and  she  has  said  interest 
therein.  The  defendant,  Robert  Sweeney,  and  Eleanor  Sweeney, 
are  each  of  them  seized  of  and  entitled  in  fee  simple  absolute  to 
1-594  undivided  parts  thereof,  the  share  of  each  of  the  said  defend- 
ants being  subject  to  the  dower  therein  of  her  mother,  the  defend- 
ant, Eliza  Sweeney,  who  has  such  dower  therein. 

The  defendants,  George  O'Donnell,  Edward  O'Donnell,  Harriet 
O'Donnell,  Patrick  O'Donnell,  and  Ellen  O'Donnell,  are  each  of 
them  seized  of  and  entitled  in  fee  simple  absolute  to  1-1485  undivided 
parts  thereof.  Thomas  Sweeney  and  Francis  Sweeney  are  each  of 
them  seized  of  land  entitled  in  fee  simple  absolute  to  (-297  undi- 
vided parts  thereof,  the  said  share  of  the  said  defendants  Thomas 
Sweeney,  being  subject  to  the  inchoate  right  of  dower  therein  of 
his  wife,  the  defendant,  Mary  Sweeney,  and  she  has  said  interest 
therein,  and  the  said  share  of  the  said  defendant,  Francis  Sweeney, 
being  subject  to  the  inchoate  right  of  dower  therein  of  his  wife,  the 
said  defendant,  Gertrude  Sweeney,  and  she  has  said  interst  therein. 
The  defendant,  Teresa  McNulty,  is  seized  of  and  entitled  in  fee 
simple  absolute  to  1-297  undivided  parts  thereof,  the  said  share  of 
the  said  defendant,  Teresa  McNulty,  being  subject  to  the  tenancy 
by  the  curtesy  therein  of  her  husband,  the  defendant,  Edward 
McNulty,  and  he  has  said  interest  therein.     The  defendant,  Bridget 


PARTITION.  I6l 


Art.  6.     Complaint  to  State  Interests  of  Parties. 


Bowen,  is  seized  of  and  entitled  in  fee  simple  absolute  to  1-27  undi- 
vided parts  thereof. 

The  defendants,  Patrick  Bowen,  Francis  Bowen,  Fannie  Mc- 
Queeny,  Thomas  Bowen,  Michael  Bowen  and  John  Moran,  are  each 
of  them  seized  of  and  entitled  in  fee  simple  absolute  of  1-162  undi- 
vided parts  thereof,  the  said  share  of  the  said  defendant,  Patrick 
Bowen,  being  subject  to  the  inchoate  right  of  dower  therein  to  his 
wife,  the  defendant,  Helen  Bowen,  and  she  has  said  interest  therein, 
the  said  share  of  the  said  defendant,  Francis  Bowen,  being  subject 
to  the  inchoate  right  of  dower  therein  of  his  wife,  the  defendant, 
Ida  Bowen,  and  has  said  interest  therein,  and  the  said  share  of 
the  said  defendant,  Fannie  McQueeny,  being  subject  to  the 
tenancy  by  the  curtesy  initiate  therein  of  her  husband,  the  defendant 
George  McQueeny,  and  he  has  said  interest  therein,  the  said 
share  of  the  said  defendant,  Thomas  Bowen,  being  subject  to 
the  inchoate  right  of  dower  therein  of  his  said  wife,  the  defend- 
ant, Bridget  Bowen,  and  she  has  said  interest  therein;  the  said  share 
of  the  said  defendant  Michael  Bowen  being  subject  to  the  in- 
choate right  of  dower  therein  of  his  wife,  the  defendant  Julia  Bowen, 
and  she  has  said  interest  therein,  and  the  said  share  of  the  said  de- 
fendant John  Moran,  being  subject  to  the  inchoate  right  of  dower 
of  his  wife,  the  defendant  Lucy  Moran,  and  she  has  said  interest 
therein. 

The  defendants  Patrick  Ford,  Francis  Ford,  Michael  Ford,  Thomas 
Ford  and  John  Ford,  are  each  of  them  seized  of  and  entitled  in  fee 
simple  absolute  to  1-135  undivided  parts  thereof,  the  share  of  the 
said  defendant  Patrick  Ford  being  subject  to  the  inchoate  right  of 
dower  therein  of  his  wife,  the  defendant  Mary  Ford,  and  she  has 
said  interest  therein.      (Insert  like  provisions.) 

The  defendants  Bridget  McNulty,  Mary  Ann  Cane  and  Catherine 
Ward,  are  seized  and  entitled  in  fee  simple  absolute  to  1-81  undi- 
vided parts  thereof,  the  said  share  of  the  said  defendant,  Bridget 
McNulty,  being  subject  to  the  tenancy  by  the  curtesy  initiate 
therein  of  her  husband,  the  defendant,  David  McNulty,  and  he  has 
said  interest  therein;  the  said  share  of  the  said  defendant,  Mary 
Ann  Cane,  being  subject  to  the  tenancy  by  the  curtesy  initiate 
therein  of  her  husband,  the  defendant,  John  Cane,  and  he  has  said 
interest  therein,  and  the  said  share  of  the  said  defendant,  Catherine 
Ward,  being  subject  to  the  tenancy  by  the  curtesy  initiate  therein  of 
her  husband,  the  defendant,  Henry  Ward,  and  he  has  said  interest 
therein. 

Fifteenth.  That  neither  the  said  testator,  John  Bowen,  nor  the 
said  Mary  T.  Hatten,  left  any  other  real  estate  in  the  State  of  New 
York  other  than  hereinabove  mentioned  and  described. 

Sixteenth.  That  all  the  defendants  to  this  action  claim  to  own  or 
to  have  some  interest  in  the  said  real  property  above  described 
under  and  by  virtue  of  the  said  will  or  otherwise. 

Wherefore  the  plaintiff  demands  judgment  in  this  action  for  a 
partition  and  division  of  said  premises  and  real  property  hereinbe- 
fore described,  according  to  the  respective  rights  of  the  parties  in- 
terested therein,  and  if  a  partition  cannot  be  made  without  material 

[Special  Actions  —  11.] 


l62 


PARTITION. 


Art. 


Matters  of  Practice. 


injury  to  those  rights,  then  for  a  sale  of  said  premises  and  real  prop- 
erty and  a  division  of  the  proceeds  among  the  parties  according  to 
their  rights,  to  be  settled  and  adjudged  by  this  court,  afterpayment 
of  the  costs  and  expenses  of  this  action;  and  the  plaintiff  may  have 
such  other  or  further  order,  relief  or  judgment  as  to  the  court  may 
seem  proper  and  agreeable  to  equity. 

FLAMEN  B.   CANDLER, 

Plaintiff's  Attorney. 


ARTICLE  VII. 
Matters  of  Practice. 


1541. 


Sub.  I.  Notice,  object  of  action  and  order  of  publication. 

2.  Defences,  how  pleaded  and  effect. 

3.  Miscellaneous  matters  of  procedure. 

4.  Appeals. 


Sub.  I.    Notice,  Object  of  Action  and  Order  of  Publication. 

§  1541- 

§  1541.  Provision  where  a  party  is  unknown 

Where  a  defendant  having  a  share  or  interest  in  the  property  is  unknown,  or 
where  his  name  or  part  of  his  name  is  unknown,  and  the  summons  is  served 
upon  him  by  publication,  or  without  the  State,  pursuant  to  an  order  for  that 
purpose,  as  prescribed  in  article  second  of  title  first  of  chapter  fifth  of  this  act, 
the  notice  subjoined  to  the  copy  of  the  summons  as  published,  or  served  there- 
with, must,  in  addition  to  the  matters  required  in  that  article,  state  briefly  the 
object  of  the  action,  and  contain  a  brief  description  of  the  property. 

This  section  takes  the  place  of  the  provisions  of  the  Revised 
Statutes  and  renders  obsolete  the  decision  in  Sandford  v.  WJiite, 
54  N.  Y.  359. 

No  steps  can  be  taken  against  unknown  owners,  till  notice 
required  by  statute  has  been  complied  with.  Denning  v.  Corzvin^ 
II  Wend.  647. 

An  order  for  publication  is  satisfied  by  the  publication  of  an 
order  substantially  correct,  and  the  court  may  allow  the  order 
to  be  amended  after  judgment.  Van  Wyck  v.  Hardy,  20  How. 
222. 


PARTITION.  163 


Art.  7.     Matters  of  Practice. 


Precedent  for  Affidavit  for  Order  of  Publication  on  Absentees. 

SUPREME  COURT. 


Cornelius  H.  DuBois 


agst. 


Sarah  DuBois,  Mary  G.  Merritt  and  Henry  A.  Mer- 
ritt,  her  husband;  Robert  W.  DuBois  and  Sarah 
DuBois,  his  wife;  Louis  B.  DuBois  and  Elizabeth 
DuBois,  his  wife;  Magdalena  B.  Burhans  and 
Forman  Burhans,  her  husband;  Mary  J.  DeGraw 
and  Edwin  S.  DeGraw,  her  husband;  Abraham 
Wood,  William  Wood,  Mary  Wood,  Malinda 
DuBois  and  Abraham  Wood. 


State  of  New  York,  | 

County  of  Kings,  City  of  Brooklyn,  f 

Cornelius  H.  DuBois,  the  above-named  plaintiff,  being  duly  sworn, 
says  that  the  action  is  brought  for  a  partition  of  real  estate  situated 
in  the  town  of  Hurley,  in  the  county  of  Ulster,  this  State,  in  which 
county  of  Ulster  the  place  of  trial  is  laid,  of  which  real  estate  the 
plaintiff  and  the  defendants  Mary  G.  Merritt,  Robert  W.  DuBois, 
Louis  B.  DuBois,  Magdalena  B.  Burhans,  Mary  J.  DeGraw,  Abra- 
ham Wood,  Jr.,  William  and  Mary  Wood,  are  seized,  in  fee  simple, 
as  tenants  in  common.  That  the  defendants,  Louis  J.  DeGraw, 
Magdalena  B.  Burhans  and  Mary  J.  DeGraw,  are  tenants  in  com- 
mon and  owners  of  undivided  portions  of  said  premises.  That 
said  last  mentioned  defendants  are  not  residents  of  the  State  of  New 
York;  but  reside,  the  said  Louis  B.  DuBois  at  59  Tears  avenue,  Jer- 
sey City  Heights,  Jersey  City,  the  said  Magdelena  B.  Burhans,  at 
4512  Brown  street,  West  Philadelphia,  Pa.,  and  the  said  Mary  J. 
DeGraw  at  No.  1216  Moseley  street,  Philadelphia,  Pa.,  and  they  are 
not  to  be  found  within  the  State,  to  the  knowledge,  information  and 
belief  of  deponent. 

That  the  following-named  defendants  are  also  non-residents  of  this 
State:  Elizabeth  A.  DuBois,  who  resided  with  her  husband,  Louis  B. 
DuBois,  at  the  place  above  named  as  his  residence ;  Thomas  Burhans, 
who  resides  with  his  wife,  Magdalena  B.  Burhans,  at  the  place  above 
named  as  her  residence,  and  Edwin  S.  DeGraw,  who  resides  with 
his  wife,  Mary  J.  DeGraw,  at  the  place  above  named  as  her  resi- 
dence. 

That  the  summons  and  complaint  herein  were  filed  in  the  Ulster 
county  clerk's  office,  July  22d,  1896,  and  that  the  same  are  hereto 
annexed. 

That  the  plaintiff,  the  deponent,  resides  in  the  city  of  Brooklyn, 
in  the  county  of  Kings,  and  the  State  of  New  York. 

That  the  statements  contained  in  the  verified  complaint  herein  are 
true  to  the  knowledge  of  deponent. 


164 


PARTITION. 


J\rt.  7.     Matters  of  Practice. 


That  the  means  and  sources  of  deponent's  knowledge  of  the  non- 
residence  of  the  defendants  above  named,  and  of  their  residences  at 
the  places  above  stated  are  as  follows,  to-wit:  That  the  defendant 
Louis  B.  DuBois  is  a  nephew  of  deponent's,  and  from  time  to  time 
has  called  at  deponent's  place  of  business.  No.  24  West  street,  New- 
York  city,  and  has  told  deponent  that  he  resided  at  the  place  above 
named  with  his  wife,  the  defendant,  Elizabeth  A.  DuBois. 

That  the  defendants  Magdalena  B.  Burhans  and  Mary  J.  Burhans 
are  nieces  of  deponent,  and  deponent  from  time  to  time,  hears  of 
them  and  from  them  through  members  of  deponent's  family,  and 
deponent,  before  making  this  affidavit,  made  inquiries  of  the  mem- 
bers of  his  family,  who  write  letters  to  and  receive  letters  from  the 
said  Magdalena  B.  Burhans  and  the  said  Mary  J.  DeGraw,  and  was 
told  that  they  resided  with  their  husbands;  the  said  Magdalena  B. 
Burhans  with  her  husband,  the  defendant,  Forman  Burhans,  and  the 
said  Mary  J.  DeGraw  with  her  husband,  the  defendant,  Edwin  S. 
DeGraw,  at  the  places  respectively  above  set  forth  as  their  respec- 
tive places  of  residence,  which  information  deponent  verily  believes 
to  be  true,  and  deponent  will  not  be  able,  with  due  diligence,  to 
make  personal  service  of  the  summons  upon  any  of  the  above-named 
resident  defendants  within  this  State  except  the  defendant  Louis  B. 
DuBois,  for  the  reason  that  the  said  defendants  reside  out  of  this 
State,  as  above  set  forth,  and  for  the  further  reason  that  none  of  the 
said  defendants,  except  the  defendant  Louis  B.  DuBois,  intend,  as 
deponent  learns  from  members  of  his  family  who  correspond  with 
them,  visiting  or  returning  to  the  State  of  New  York. 

That  the  said  defendants  Louis  B.  DuBois  and  Magdalena  B.  Bur- 
hans have  property  within  this  State,  to-wit:  each  of  them  has  an 
undivided  one-fifteenth  interest  in  the  property  described  in  the 
verified  complaint,  which  is  hereto  annexed,  subject  to  the  dower 
interest  of  the  defendant  Sarah  DuBois,  the  widow  of  Edmund  A. 
DuBois,  and  subject  also  to  the  inchoate  right  of  dower  of  the  de- 
fendant Elizabeth  A.  DuBois,  in  the  interest  of  the  defendant,  Louis 
B.  DuBois,  and  subject  also  to  the  general  lien  of  the  judgment  now 
held  by  the  defendant  Abraham  Wood,  as  alleged  in  the  complaint. 

That  the  said  defendant,  Mary  J.  DuBois,  has  property  within 
this  State,  to-wit:  an  undivided  one-third  interest  in  the  property 
described  in  the  verified  complaint  herein. 


(Jurat,  usual  form.) 


CORNELIUS  H.   DUBOIS. 


I 


i 


PARTITION.  165 


Art.  7.     Matters  of  Practice. 


Precedent  for  Order  of  Publication  on  Absentees. 

SUPREME  COURT. 


Cornelius  H.  DuBois, 

agst. 

Sarah  DuBois,  Mary  G.  Merritt  and  Henry  A.  Mer- 
ritt,  her  husband;  Robert  W.  DuBois  and  Sarah 
DuBois,  his  wife;  Louis  B.  DuBois  and  Elizabeth 
A.  DuBois,  his  wife;  Magdalena  B.  Burhans  and 
Forman  Burhans,  her  husband;  Mary  J.  DeGraw 
and  Edwin  -S.  DeGraw,  her  husband;  .'Abraham 
Wood,  Jr.,  William  Wood,  Mary  Wood,  Matilda 
Wood,  Abraham  Wood. 


The  plaintiff  having  presented  to  me  a  verified  complaint  in  this 
action,  which  is  hereto  annexed,  showing  a  cause  of  action  for 
which  judgment  is  therein  demanded  against  the  defendants,  Louis 
B.  DuBois  and  Elizabeth  A.  DuBois,  his  wife,  Magdalena  B.  Burhans 
and  Forman  Burhans,  her  husband,  Mary  J.  DeGraw  and  Edwin  S. 
DeGraw,  her  husband,  and  having  also,  by  the  annexed  affidavit, 
made  and  verified  by  him  on  the  28th  day  of  July,  1886,  made  proof 
to  my  satisfaction  that  the  said  defendants  are  not  residents  of  this 
State  and  that  personal  service  cannot,  with  due  diligence,  be  made 
upon  them  within  this  State: 

Now,  on  motion  of  James  McPherson,  attorney  for  the  plaintiff, 
it  is  ordered,  that  service  of  the  summons  and  complaint  in  the 
above-entitled  action  upon  the  defendants,  Eouis  B.  DuBois  and 
Elizabeth  A.  DuBois,  his  wife,  Magdalena  B.  Burhans  and  Forman 
Burhans,  her  husband,  Mary  J.  DeGraw  and  Edwin  S.  DeGraw,  her 
husband,  be  made  by  publication  thereof,  with  the  notice  required 
by  law,  in  two  newspapers  to-wit:  in  the  Kingston  Daily  Leader, 
published  in  the  city  of  Kingston,  in  the  county  of  Ulster,  and  State 
of  New  York,  and  in  the  EUenville  Journal,  published  in  the  village 
of  EUenville,  in  the  county  of  Ulster,  and  .State  of  New  York,  once 
a  week  for  six  successive  weeks,  or  at  the  option  of  the  plaintiff,  by 
service  of  the  summons  and  copy  of  the  complaint  and  of  this  order, 
with  the  notice  required  by  law,  upon  the  said  defendants  personally, 
without  the  State. 

And  it  is  further  ordered  and  directed,  that  on  or  before  the  day 
of  the  first  publication,  the  plaintiff  deposit  in  the  post-office  at 
Kingston,  Ulster  county.  New  York,  sets  of  copies  of  the  summons 
and  complaint  hereto  annexed  and  of  this  order,  each  contained  in  a 
securely  closed  post-paid  wrapper,  directed  to  the  following  defend- 
ants, respectively,  at  the  places  designated  below: 

Louis  B.  Dubois,  59  Tears  ave.,  Jersey  City  Heights,  New  Jersey. 

Elizabeth  A.  DuBois,  59  Tears  ave.,  Jersey  City  Heights,  Jersey 
City,  New  Jersey, 

Magdalena  B.  Burlians,  .;5i2  Brown  street,  West  Philadelphia,  Pa. 


l66  PARTITION. 


Art.  7.     Matters  of  Practice. 


Forman  Burhans,  4512  Brown  street,  West  Philadelphia,  Pa. 
Mary  J.  DeGraw,  12 16  Moseley  street,  Philadelphia,  Pa. 
Edwin  S.  DeGraw,  1216  Moseley  street,  Philadelphia,  Pa. 
Dated  Kingston,  N.  Y.,  July  29,  1886. 

A.   B.   PARKER, 

J.   S.   C. 

Precedent  for  Notice  Subjoined  to  Summons  for  Publication. 

To  John  H.  Griffin,  Jacob  Griffin  and  Henrv  Krum  : 

The  foregoing  summons  is  served  upon  you  by  publication,  pursuant 
to  an  order  of  Hon.  Alton  B.  Parker,  a  justice  of  the  Supreme  Court 
of  the  State  of  New  York,  dated  the  14th  day  of  December,  1887, 
and  filed  with  the  complaint  in  the  office  of  the  clerk  of  the  county 
of  Ulster,  in  the  city  of  Kingston,  Ulster  county,  in  said  State. 

The  object  of  this  action  is  to  make   partition  according  to  the 
respective  rights  of  the  parties  and,  if  it  appears  that  partition  can- 
not be  made  without  great  prejudice  to  the  owners,  then  for  a  sale  of 
the  following  described  property.     (Brief  description.) 
Dated  December  14,  1887.  g    D    HOOD, 

Plaintiff's  Attorney. 

Sub.  2.  Defence,  how  Pleaded  and  Effect. 

The  objection  that  a  defendant  in  partition  is  not  a  proper  or 
necessary  party,  can  be  taken  only  by  an  answer  disclaiming  all 
interest,  and  not  by  demurrer  to  the  complaint  for  failure  to  state 
a  cause  of  action.  Barnes  v.  Blake,  59  Hun,  371,  36  St.  Rep.  210, 
20  Civ.  Pro.  R.  17,  13  Supp.  'j'j. 

In  Middlcbrook  v,  Travis,  66  Hun.  510,  50  St.  Rep.  149,  21 
Supp.  398,  it  was  held  that  a  demurrer  by  a  co-defendant  to  a 
complaint  in  a  partition  suit,  on  the  ground  that  as  to  him  it  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action,  was  held 
frivolous. 

A  defendant  in  an  action  of  partition  cannot  demur  to  an 
answer  served  upon  him  by  a  co-defendant.  Stuart  v.  Blatchley, 
yy  Hun,  425,  60  St.  Rep.  48,  28  Supp.  800,  affirming  8  Misc.  472, 
29  Supp.  547,  60  St.  Rep.  602. 

It  was  held  that  the  answer  set  up  a  valid  counterclaim  where 
it  alleged  that  the  defendant,  being  the  equitable  owner  of  the 
land  in  question  under  contract  of  purchase,  agreed  to  give  plain- 
tiff an  interest  therein,  the  title  to  be  taken  in  their  joint  names 
and  plaintiff  to  pay  the  balance  of  the  purchase  price  and  advance 
certain  moneys,  and  that  plaintiff  failed  to  fulfill  the  contract. 
Miekelv.  Halheimer,  10  N.  Y.  Sup.  489;  s.  c.  32  St.  Rep.  348. 


PARTITION.  167 


Art.  7.     Matters  of  Practice. 


An  answer,  setting  up  a  defective  pleading  that  other  persons 
not  joined  had  contingent  interests  under  the  will,  should  not  be 
required  to  be  made  more  definite  and  certain  by  setting  out  the 
portions  of  the  will  giving  such  interests  to  such  persons,  where 
the  complaint  does  not  set  forth  the  will,  but  merely  gives  a  sum- 
mary of  it.     Eisner  v.  Eisner,  89  Hun,  480,  35  Supp.  393. 

In  an  action  for  partition,  it  seems  that  persons  claiming  an 
interest  or  lien  upon  the  premises  sought  to  be  partitioned  will 
be  obliged,  to  litigate  the  validity  thereof  with  a  co-defendant  who 
controverts  their  interest  or  lien,  notwithstanding  all  the  allega- 
tions in  the  complaint,  relating  to  their  interests  in  the  premises, 
have  been  stricken  out  by  the  order  of  the  court;  Hagcrty  v. 
Andrezvs,  Court  of  Appeals,  4  Civ.  Pro.  R.  323.  It  is  said  that 
it  is  not  absolutely  necessary  for  a  guardian  ad  litem  to  put  in  an 
answer;  Bogart  v.  Bogarf,  ^^  Barb.  121  ;  and  that  such  omi.ssion 
will  not  affect  the  title;  AltJiause  v.  Paddle,  3  Bosw.  410 ;  but 
where  the  facts  render  a  special  answer  necessary,  it  is  the  duty  of 
the  guardian  to  interpose  it.  Knickcrbacker  v.  Defreesf,  2  Paige, 
304.  See  Rule  50  as  to  duty  of  guardian  requiring  him  to  make 
the  proper  defence  when  necessary  for  the  interests  of  the  infant. 

Sub.  3.   Miscellaneous  Matters  of  Procedure. 

Proceedings  regulating  partition  where  the  people  are  a  party 
are  regulated  by  §  6  Public  Lands  Law,  Chap.  1 1  General  Laws 
and  ^  273  Fisheries,  Game  and  Forest  Law,  Chap.  31,  General 
Laws. 

The  mere  issuing  of  a  summons  is  not  the  commencement  of  an 
action  for  general  purposes.  Kerr  v.  Mount,  28  N.  Y.  659.  An 
action  is  commenced  by  the  service  of  a  summons.  §  416,  Code. 
As  a  general  rule,  an  action  is  not  commenced  until  the  service  of 
a  summons.  Wiggin  v.  Orser,  5  Duer,  118.  The  filing  of  a  sum- 
mons and  complaint  is  not  the  commencement  of  a  suit,  nor  is 
the  filing  of  a  lis  pendens,  except  as  constructive  notice  to  pur- 
chasers.     Haynesv.  Ondcrdonk,  2  Hun,  519,  5  T.  &  C.  176. 

It  was  held  in  Warner  v.  Warner,  57  St.  Rep.  763,  citing  Hayncs 
v.  Onderdonk,  2  Hun,  519,  5  T.  &  C.  176,  supra  ;  Boy  1st  on  v.  Wheeler, 
5  T.  &  C.  176,  that  where  a  defendant  in  an  action  of  partition  had 
not  been  served,  its  pendency  was  no  ground  for  the  abatement  of  a 
subsequent  action  brought  for  the  same  purpose  by  such  a  defendant. 
Kerrv.  Mount  was  also  cited  as  sustaining  the  proposition  ;  also  Ex 


1 68 


PARTITION. 


Art.  7.      Matters  of  Practice. 


parte  Griszvold,  1 3  Barb.  412;  Trtist  Co.  v.  Dickson,  9  Abb.  61 .  It  is 
further  held  in  the  principal  case  that  if  each  tenant  in  common 
should  commence  an  action,  the  court  would  have  no  difficulty 
upon  motion,  in  consolidating  the  actions  or  in  making  such 
direction  as  would  assure  an  orderly  procedure  in  them. 

An  omission  of  proof  of  serving  a  copy  of  summons  and  com- 
plaint may  be  supplied  tunic  pro  tunc.     Herbert  v.  Smith,  6  Lans. 

493- 

The  service  of  summons  on  the  defendant,  who  left  home  at 
the  age  of  nineteen  and  has  not  been  heard  from  in  eighteen  years, 
by  publication  against  him  and  his  wife,  if  any,  his  heirs,  grantees, 
devisees  or  assignees  as  unknown  defendants,  is  sufficient  to  bind 
the  heirs  of  such  defendant,  whoever  they  may  be.  Guycr  v. 
Raymond,  8  Misc.  606,  29  Supp.  395,  61  St.  Rep.  54. 

A  summons  may  be  amended  after  judgment  and  sale  where 
the  names  of  certain  defendants  were  omitted  from  the  summons 
filed,  the  defendants  having  been  actualh'  made  parties.  Van 
IVyck  V.  Hardy,  11  Abb.  N.  C.  473,  affirmed  4  Abb.  Ct.  of  Ap. 
Dec,  496. 

The  statutory  directions  as  to  filing  /is  pendens,  with  the  decis- 
ion relating  thereto,  will  be  found  at  ^  1670  to  1674,  which  see 
for  the  authories  on  the  subject. 

Where  an  action  has  been  begun  under  ^  1537  and  the  plaintiffs 
allege  that  a  devise  is  void  because  of  the  testator's  incompetency 
and  of  undue  influence,  a  motion  made  by  defendant  for  a  bill 
of  particulars  requiring  the  plaintiff  to  state  in  what  particular 
the  execution  of  said  will  was  defective,  also  any  particular  or 
special  act  or  false  representation  relied  on  as  establishing  undue 
influence,  will  be  denied.  Ifarjard  v.  lUrdsall,  61  Hun,  208,  40 
St.  Rep.  707. 

Where  the  defence  to  a  partition  suit  b}'  the  only  defendant 
appearing,  was  another  action  pending,  and  it  appeared  that  sixty 
days  before  he  had  commenced  an  action  filing  the  summons, 
complaint  and  lis  pendens,  by  serving  one  or  two  defend- 
ants, not  including  plaintiff  in  the  present  action,  it  was  held  that 
the  plea  would  not  avail.  Warner  v.  Warner,  6  Misc.  249,  57 
St.  Rep.  763,  27  Supp.  160. 

Where  the  court  has  jurisdiction  of  all  the  parties  and  guardian 
ad  litem  had  been  appointed  for  non-resident  infant  defendants 
before  the  time  for  publication  had  expired,  a  judgment  entered 


PARTITION.  169 


Art.  7.     Matters  of  Practice. 


is  voidable  at  the  election  of  the  infant.s,  upon  an  application  sea- 
sonably made,  and  the  purchaser  will  not  be  compelled  to  take 
the  title.  Crontcr  v.  Crontcr,  133  N.  Y.  55,  44  St.  Rep.  315, 
affirming  43  St.  Rep.  438,  17  Supp.  758. 

Where  a  defendant  in  a  partition  action  set  up  a  claim  under 
a  mortgage  to  all  the  premises,  but  did  not  serve  the  answer  on 
the  other  defendants;  held,  she  was  not  entitled  to  a  judgment  for 
payment  by  partition  as  a  mortgagee.  Weston  v.  Stoddard^  60 
Hun,  290,  38  St.  Rep.  46,  14  Supp,  580. 

The  practice  of  entering  in  the  first  instance  an  interlocutory 
judgment  to  be  followed  by  a  final  judgment  upon  the  termination 
of  the  proceedings,  authorized  by  the  interlocutory  judgment,  pre- 
vailed in  chancery  and  is  authorized  and  required  by  the  Code. 
Mingay  v.  Lackey,  142  N.  Y.  449,  60  St.  Rep.  98,  affirming  74 
Hun,  89,  57  St.  Rep.  270,  26  Supp.   161. 

Where  the  death  of  a  party  rendered  impossible  the  execution 
of  a  portion  of  the  interlocutory  judgment,  it  is  proper  for  the 
court  to  amend  it  by  striking  out  such  provision.  Mingay  v. 
Lackey,  142  N.  Y.  449,  60  St.  Rep.  98. 

Where  an  action  has  been  brought  in  good  faith  but  by  mistake, 
not  attributable  to  any  want  of  care  on  the  part  of  the  plaintiff, 
a  necessary  defendant  has  been  omitted  and  the  persons  having 
no  interest  in  the  property  have  been  joined,  an  application  to 
bring  in  such  necessary  party,  drop  the  names  of  the  others  from 
the  title  of  the  action,  and  amend  the  complaint  accordingly, 
should  be  granted.  Hall  v.  Campbell,  yy  Hun,  567,  28  Supp. 
103 1,  60  St.  Rep.  487. 

Where  the  answers  concerning  a  lot  which  defendants  claimed 
under  a  contract  of  sale  on  which  they  made  payments  to  plain- 
tiff's ancestor,  were  withdrawn  from  the  action,  held  t\\?it  an  order 
to  amend  the  judgment  by  inserting  the  description  of  the  prop- 
erty was  properly  denied.  Baskin  v.  Liigalls,  88  Hun,  618,  68  St. 
Rep.  391,  34  Supp.  402. 

Even  though  a  court  improperly  orders  a  sale  instead  of  the  dis- 
missal of  the  complaint,  the  judgment  cannot  be  subsequently 
vacated  on  motion.  Prioj-  v.  Prior,  15  Civ.  Pro.  R.  436,  18  St. 
Rep.  566,  49  Hun,  502,  following  Reed  v.  Reed,   107  N.  Y.  545. 

A  jurisdictional  defect  cannot  be  remedied  by  amendment  ]iunc 
pro  tunc.  The  presumption  is  that  a  proper  party  who  is  not 
brought    into  the  suit  is  prejudiced.      O' Grady  v.  O'Grady,     55 


I/O 


PARTITION. 


Art.  7.     Matters  of  Practice. 


Hun,  40.     See  also  O Comr  v.   McMahon,   7   N.  Y.   Sup.  225,  26 
St.  Rep.  596,  Miller  v.  Wright,  109  N.  Y.   194. 

Mere  irregularities  may  be  amended  nunc  pro  tunc.  Bogcrt  v. 
Bogcrt,  45  Barb.  121  ;  Noble  v.  Crovnvcll,  27  How.  289;  Rogers 
V.  McLean,  34  N.  Y.  536.  And  papers  may  be  so  filed.  Waring 
V.  Waring,  7  Abb.  472;  Croghan  v.  Livingston,  17  N.  Y.  218. 
An  order  may  be  entered  nunc  pro  tunc  as  of  a  time  anterior  to 
the  death  of  a  party  who  died  after  argument  on  appeal.  Bergen 
V.  Wyckoff,  84  N.  Y.  659.  (^n  the  death  of  one  of  the  parties, 
those  who  have  succeeded  to  his  interest  may  be  substituted 
within  the  year  without  notice  to  the  others  who  have  no  interest 
in  the  question.  Gordon  v.  Stering,  13  How.  405.  Where  par- 
tition is  made  within  three  years  of  the  death  of  the  former  owner, 
the  purchaser  may  have  a  reference  to  ascertain  whether  there  are 
any  unpaid  debts,  and  whether  there  is  a  will.  Disbroiv  v.  Folger, 
5  Abb.  53.  If  the  plaintiff  die  pending  the  advertisement  of  sale, 
and  one  of  his  heirs  be  substituted  as  plaintiff,  it  is  not  necessary 
to  advertise  anew,  changing  the  title  of  the  cause.  T/nuingw. 
TJnving,  18  How.  458.  The  report  of  a  referee  may  be  corrected 
by  the  court.  Safford  v.  Safford,  7  Paige,  259;  Carpenter  v- 
Schernicrhorn,  2  Barb.  Ch.  314. 

Where  the  referee  reports  correct  conclusions  of  fact  in  a  refer- 
ence in  partition  to  "  inquire  and  report,"  but  erroneous  conclu- 
sions of  law  thereon,  upon  the  coming  in  of  the  report,  the  court 
is  not  required  to  .send  it  back  for  correction,  but  may  without 
exceptions  or  independent  of  them,  draw  the  proper  legal  conclu- 
sions from  the  facts.     Austin  v.  Ahearns,  61  N.  Y.  6. 

Where  the  answer  of  the  defendant  put  in  issue  the  allegation 
of  tenancy  in  common  and  alleged  title  in  himself,  by  virtue  of  a 
contract  of  sale  to  him,  and  the  referee  found  against  the  defend- 
ant on  those  issues,  it  was  held  that  the  question  of  title  was 
proper  subject  of  trial  in  the  action.  And  that  if  the  possession 
of  the  premises  was  at  the  time  of  the  commencement  of  the  action 
in  the  defendant  adversely  to  plaintiffs,  plaintiffs  could  not  bring 
the  action,    Hulse  v.  Hulse,  23  St.  Rep.  123  ;  S.  C.  17  Civ.  Pro.  R.  92. 

Where  in  an  action  of  partition,  the  true  condition  of  the  account 
between  the  respective  parties  is  one  of  the  main  questions  pre- 
sented by  the  case,  although  other  issues  should  be  involved,  an 
order  of  reference  is  proper.  Brozvn  v.  Brown,  52  Hun,  532,  23 
St.  Rep.  768. 


PARTITION.  171 


Art.  7.     Matters  of  Practice. 


Where  the  answer  does  not  raise  an  issue,  a  motion  for  judg- 
ment upon  the  pleadings  is  not  the  proper  way  to  raise  the  ques- 
tion and  the  proper  practice  is  to  move  for  a  reference  to  take 
proof  of  the  plaintiff's  title  and  interest  in  the  premises  and  of  the 
matters  set  forth  in  the  complaint.  Tilton  v.  Vail,  24  Weekly- 
Dig.  76. 

Chapter  289  of  the  Laws  of  1895,  amends  §  791,  subd.  6 
of  the  Code  by  including  therein  actions  for  partition  as  pre- 
ferred. 

By  §  982,  the  place  of  trial  is  in  the  county  where  the  property, 
or  some  part  of  it,  is  situated.  This  applies  to  equitable  as  well 
as  other  actions;  BusJi  v.  Treadzvell,  11  Abb.  (N.  S.)27;  and  the 
power  of  a  judge  to  adjourn  a  special  term  to  another  county  does 
not  authorize  him  to  change  the  place  of  trial  of  a  local  action. 
TJie  Biiighamton  Iron  Foundry  v.  Hatfield,  43  N.  Y.  224.  The 
Supreme  Court  has  no  power  under  §  817,  to  consolidate  two 
actions  for  partition,  where  the  subject  of  one  is  land  situate  in 
one  county,  and  of  the  other,  land  situate  in  another  county,  and 
where  one  or  more  of  the  parties  to  the  one  are  not  parties  to  or 
interested  in  the  other.     Mayor  v.  Coffin,  go  N.  Y.  312. 

Two  actions  for  partition  of  lands  situated  in  different  counties 
cannot  be  consolidated,  where  some  of  the  defendants  in  one  of 
the  action  are  not  parties  to  the  other  action.  Mayor  v.  Mayor, 
II  Abb.  N.  C.  367,  reversing  27  Hun,  610. 

The  granting  of  a  new  trial  as  to  one  of  the  issues  in  an  action 
of  partition  does  not  necessarily  require  a  retrial  of  all  the  issues. 
Lavcllc  V.  Corrignio,  86  Hun,  135,  33  Supp.  376,  6^  St.  Rep.   122. 

Where  an  action  of  partition  is  brought,  and  lis  pendens  filed, 
but  the  action  is  not  proceeded  with  with  reasonable  dispatch,  one 
named  as  a  defendant,  but  who  has  not  been  served  with  the  sum- 
mons, may  apply  to  have  plaintiff's  proceeding  vacated.  Lyle  v. 
Smith,  13  How.  104.  Where  a  plaintiff  moved  to  set  aside 
proceedings  in  a  suit  brought  by  a  defendant  for  partition,  on 
the  ground  that  an  action  for  the  partition  of  the  same  premises 
had  been  previously  brought  by  the  plaintiff,  the  motion  was 
denied  on  the  ground  that  the  remedy  was  by  answer  in  the  last 
suit,  unless  it  appeared  on  the  face  of  the  complaint,  and  then  by 
demurrer.  Hornfager  v.  Hornfager,  6  How.  279.  It  is  said  that 
a  new  trial  will  be  granted  in  partition  on  slight  grounds.  Clayton 
V.  Yorrington,  33  Barb.   144.      And  that  application   for  leave  to 


172 


PARTITION. 


Art.   7.      Matters  of  Practice. 


discontinue  after  judgment  is  addressed  to  the  discretion  of  the 
court.     Furvian  v.  Fiirman^  12  Hun,  441. 

Where  in  partition  the  defence  was  that  the  plaintiff  was  sole 
owner,  the  complaint  was  properly  dismissed  on  the  merits.  Tatar 
V.  Tatar,  29  St.  Rep.  886. 

The  same  course  was  followed,  dismissing  the  action  as  to  a 
parcel  to  which  there  were  no  undivided  interests,  and  continuing  as 
to  others  in  l^aii  ScJiaack  v.  Saunders^  24  Week.  Dig.  225. 


Sub.  4.   Appeals. 

An  appeal  cannot  be  taken  to  the  Court  of  Appeals  from  the  in- 
terlocutory judgment  directing  a  sale  but,  on  final  judgment,  the 
interlocutory  judgment  may  be  reversed.  §§  1301,  1316,  1317, 
1 337,  Code  of  Civil  Procedure ;  Bccbc  v.  Griffing,  6  N.  Y.  465  ;  Cru- 
gcr  V,  Douglass,  2  N.  Y.  571  ;  Tovipkins  v.  Hyatt,  19  N.  Y.  534. 
An  appeal  to  the  Court  of  Appeals,  on  the  question  as  to  whether 
an  actual  partition  or  sale  was  proper,  will  be  sustained  only  for 
manifest  error.     Scott  v.  Guernsey,  48  N.  Y.  106. 

A  party  to  an  action  of  partition  may  not  receive  and  accept 
the  amount  awarded  to  him  by  a  judgment  and  appeal  therefrom ; 
he  thereby  waives  the  appeal.     Alexander  v.  Alexander,  104  N. 

Y.  643. 

The  Court  of  Appeals  has  no  jurisdiction  to  review  an  inter- 
locutory judgment  rendered,  as  provided  for  by  the  Code  of  Civil 
Procedure,  ^  1 546,  in  an  action  for  partition,  except  upon  an  appeal 
from  the    final  judgment.      Tiltan  v.  Vail,  117  N.  Y.  520. 

It  seems  that  as  the  Code  provides,  §  1 544,  that  issues  of  fact  in  an 
action  of  partition  are  triable  by  a  jury,  the  trial  court  may  not 
disregard  the  findings  of  the  jury,  and  exceptions  taken  on  the 
trial  before  the  jury,  may  be  considered  upon  the  appeal  from  the 
judgment.      Joiics  v.  Jones,  120  N.  Y.  589. 

Where  on  an  application  by  a  purchaser  to  be  relieved  from 
his  bid,  it  appeared  that  he  had  been  negligent  in  obtaining  full 
and  accurate  information,  it  was  held  to  be  in  the  discretion  of  the 
court  below  as  to  whether  or  not  the  relief  .should  be  granted,  and 
denial  of  relief  not  appealable  to  Court  of  Appeals.  Dcnnerlem 
V.  Dennerlem,  in  N.  Y.  518. 


PARTITION.  173 


Art.  S.      Receiver. 


ARTICLE  VIII. 
Receiver. 

A  receiver  and  injunction  will  not  be  granted  in  partition  unless 
the  right  of  the  application  is  clear.  Patterson  v.  McCuim,  46 
How.  182.  Where  one  of  the  parties  has  a  portion  of  the  estate 
and  has  been  in  the  habit  of  collecting  the  rents,  as  he  alleges, 
for  the  protection  of  the  income  from  waste,  a  receiver  should  be 
appointed  on  an  affidavit  alleging  on  information  and  belief  that 
such  party  is  of  little  or  no  responsibility.  Darcin  v.  Wells,  61 
How.  259.  Where  one  of  two  tenants  in  common  refuses  to  rent, 
and  unnecessary  loss  will  result  to  the  other,  a  receiver  will  be 
appointed.     Pignolet  v.  BnsJi,  28  How.  9. 

A  receiver  should  not  be  appointed  on  the  ground  that  one  of 
the  defendants  is  in  possession,  collecting  the  rents  and  refuses  to 
account  therefor,  where  the  allegation  of  refusal  to  account  is 
denied  and  there  is  no  evidence  that  such  defendant  has  acted 
with  impropriety  or  is  unable  to  respond  to  any  claim  of  the  mov- 
ing party.  BatJunann  v.  DatJimann,  79  Hun,  477,  61  St.  Rep. 
270,  29  Supp.  959. 

A  receiver  may  properly  be  appointed,  where  it  appears  that 
parties  are  hostile  and  both  endeavoring  to  collect  rents  from  the 
tenants  of  the  property,  and  there  is  danger  of  future  injury  and 
non-payment  of  taxes  and  mortgage  interests.  Goldberg  v.  Rieh- 
ards,  26  Supp.  335,  5  Misc.  419. 

A  receiver  appointed  in  an  action  of  partition,  to  which  all  per- 
sons interested  were  parties,  may  maintain  an  action  for  rent  after 
the  co-tenant  in  possession  has  recognized  the  receiver's  title,  by 
joining  in  the  execution  of  a  lease  by  him  in  which  she  agrees  to 
pay  him  a  stated  rental.     Smith  v.  Lavelle,  13  Misc.  528. 

Where  the  parties  to  a  partition  suit  agree  at  the  outset  to  have 
a  receiver  if  it  seem  reasonably  necessary  to  preserve  and  maintain 
the  rights  of  the  parties,  the  court  will  act.  Bowers  v.  Diirant,  2 
St.  Rep.  127.  But  the  appointment  of  a  receiver  will  only  be 
made  for  the  protection  of  the  parties.  Vincent  v.  Parker,  7  Paige, 
65.      See  also  Verplank  v.  Verplank,  22  Hun,  104. 

The  court  has  power  in  a  partition  suit  to  authorize  the  receiver 
to  lease  the  property  pendente  lite,  and  absence  of  notice  to  the 
parties  of  the  application  for  leave  to  lease  is  not  a  jurisdictional 


174  PARTITION. 


Art.  9.     What  Questions  may  be  Tried  in  the  Action  and  in  What  Manner. 

defect,  and  does  not  invalidate  the  lease  executed  under  it.  It 
seems,  however,  that  notice  should  be  required  where  a  lease  has 
been  executed  by  the  receiver  under  an  ex  parte  order  of  the  court 
extending  beyond  the  close  of  the  litigation.  The  court  has 
power  to  modify  or  vacate  the  order,  although  the  rights  of  the 
lessee  may  be  affected  by  it,  and  it  may  direct  the  lessee  to  be 
indemnified  out  of  the  property.  Weeks  v.  Weeks,  106  N.  Y.  626. 
Whenever  it  appears,  during  the  prosecution  of  the  suit,  that  a 
receiver  is  necessary  to  protect  the  interests  of  all  the  parties,  the 
court  will,  upon  proper  application,  make  the  appointment. 
Where  the  defendants  dispute  the  plaintiff's  title  and  endeavor  to 
delay  an  accounting  for  rents  and  profits,  a  proper  case  is  made 
for  the  interference  of  the  court.  Beach  on  Receivers,  §  492. 
Where,  in  partition,  an  estate  of  a  decedent  is  sought  to  be  distri- 
buted or  will  construed  upon  the  death  of  sole  surviving  executor, 
a  receiver  will  be  appointd.     Code,  §  1869. 


ARTICLE  IX. 

What  Questions   May   be  Tried   in  the  Action  and  in 
What  Manner.    §§  1543,  1544. 

Sub.  r.  Title  of  parties  may  be  tried.     §  1543. 
2.  Issues  of  fact  triable  by  jury.     §  1544. 

Sub.  I.   Title  of  Parties  May  be  Tried.     §  1543. 

§  1543.  Title  of  parties  may  be  tried. 

The  title  or  interest  of  the  plaintiff  in  the  property,  as  stated  in  the  complaint, 
may  be  controverted  by  the  answer.  The  title  or  interest  of  any  defendant  in  the 
property,  as  stated  in  the  complaint,  may  also  be  controverted  by  his  answer,  or 
the  answer  of  any  other  defendant ;  and  the  title  or  interest  of  any  defendant,  as 
stated  in  his  answer,  may  be  controverted  by  the  answer  of  any  other  defendant. 
A  defendant,  thus  controverting  the  title  or  interest  of  a  co-defendant,  must 
comply  with  section  521  of  this  act.  The  issues,  joined  as  prescribed  in  this  sec- 
tion, must  be  tried  and  determined  in  the  action. 

Whatever  a  plaintiff  is  required  to  state  in  his  complaint  the 
defendant  may  be  required  to  admit  or  deny  in  his  answer. 
Van  Cortland  v.  Beekman,  6  Paige,  492.  The  defendant  may 
aver  anything  which  will  defeat  the  action  or  bar  plaintiff's  right 
to  a  judgment.  Reed  v.  CJiild,  a^Wow.  125.  If  plaintiff's  posses- 
sion is  denied  it  must  be  pleaded;  Brownell  v.  Browne//,  19 
Wend.  367  ;  and  such  an  objection  is  too  late  on  appeal.     Howe/lw. 


PARTITION.  175 


Art.  9.     What  Questions  may  be  Tried  in  the  Action  and  in  What  Manner. 

Mills,  7  Lans.  193.  Adver.se  possession  must  be  pleaded.  yen- 
kins  V.  \^an  Schaack,  3  Paige,  242 ;  German  v.  Mackin,  6  Paige, 
288.  An  answer  which  sets  up  nothing  more  than  facts  tending 
to  show  that  the  complaint  does  not  truly  state  the  .shares  and 
interests  of  the  parties,  raises  no  issues  and  does  not  prevent  or 
delay  the  usual  reference,  as  upon  failure  to  answer.  Nolan  v. 
Skelly,  62  How.   102. 

A  plea  that  after  issue  plaintiff  had  entered  upon  the  lands  and 
holds  them  is  bad,  as  the  claim  is  not  only  of  possession  but  of 
title.  Tyler  v.  Canadaj,  2  Barb.  160.  The  objection  that  all  the 
parties  are  not  joint  owners  or  tenants  in  common  of  all  the  par- 
cels sought  to  be  partitioned,  would  be  available  by  demurrer  or 
an.swer,  but  cannot  be  taken  for  the  first  time  on  the  hearing. 
Beach  v.  The  Mayor,  45  How.  357.  It  was  said,  before  the 
enactment  of  this  section,  that  the  equities  of  adverse  claims  to 
portions  of  the  premises  could  not  be  set  up.  Esterbrook  v. 
Savage,  21  Hun,  145;  but  see  the  language  of  the  section.  In 
partition  by  an  heir  against  the  widow  and  the  other  heirs,  an 
answer  alleging  a  conveyance  by  deceased  to  a  third  person, 
shows  no  defence  unless  they  connect  themselves  with  it,  and 
even  then  their  possession  must  be  hostile.  Knolls  v.  Barnhart, 
71  N.  Y.  474. 

The  fact  that  the  intestate's  personal  property  is  insufficient  to 
pay  his  debts  and  that  the  real  estate  must  be  resorted  to  for  the 
purpo.se,  is  a  defence  to  an  action  between  the  heirs-at-law  to  a 
partition  and  should  be  pleaded.  It  cannot  be  used  as  a  basis  to 
.stay  proceedings  on  a  motion.  Nezvton  v.  Waller,  12  Week.  Dig. 
314;  but  see  §  1538  as  amended. 

An  a.ssignee  of  a  deficiency  judgment  against  the  executors  of 
a  testator,  obtained  upon  the  foreclosure  of  a  mortgage  on  premi- 
ses of  which  the  testator  died  seized,  is  not  entitled  to  intervene 
and  serve  an  answer  in  a  partition  suit  between  the  heirs  of  the 
testator,  in  which  suit  the  mortgagee  was  originally  a  party  and 
appeared  but  served  no  answer.  Patterson  v.  McCunn,  17  Week. 
Dig.  186.  One  defendant  in  partition  may  set  up  the  statute  of 
limitations  against  a  judgment  upon  a  mortgage  against  his  co- 
defendant  which  is  more  than  twenty  years  old.  Barnard  v. 
Onderdonk,  1 1   Abb.  N.  C.  349. 

The  effect  of  this  section  is  to  allow  title  to  be  tried  in  parti- 
tion, as  well  as  the  bare  fact  of  joint  tenancy  or  tenancy  in  com- 


176  PARTITION. 


Art.  9.     What  Questions  may  be  Tried  in  the  Action  and  in  What  Manner. 

mon.  Knapp  v.  Burton,  7  Civ.  Pro.  R.  448.  Superseding  several 
cases  holding  that  title  could  not  be  so  tried.  Liistig  v.  Spiti- 
garin,  9  St.  Rep.  847 ;  see  Van  Schuyvcr  v.  Mulford,  59  N.  Y. 
426,  and  cases  cited;  also  Therasson  v.  White,  52  How.  66.  The 
codifiers,  in  reporting  this  section,  say  that  "  the  most  common 
as  well  as  the  most  difficult  case  of  a  disputed  title  which  is  likely 
to  arise  in  such  an  action  is  already  covered  by  §  1537,  and  no 
reason  is  perceived  why  the  principle  of  that  section  should  not 
be  extended  to  all  cases  now  that  the  distinction  between  actions 
in  equity  and  at  law,  are  abolished,  and  an  ample  provision  is 
made  for  the  trial  of  questions  of  fact  by  a  jury  in  equity  actions; 
there  is  no  sufficient  reason  for  driving  plaintiff  to  a  new  action  to 
try  title  where  it  is  disputed  by  the  ansv/er.  There  are  many 
cases  where  it  is  much  more  convenient  to  settle  the  whole  con- 
troversy on  one  action,  and  it  is  believed  that  the  provisions  of 
chapter  10  will  prevent  any  serious  inconvenience  from  arising  in 
consequence." 

The  mere  putting  in  an  answer  by  a  defendant  claiming  title 
to  the  whole  premises,  does  not  oust  the  court  of  jurisdiction  to 
ascertain  whether  the  claim  of  title  is  well  founded,  or  whether 
the  premises  are  held  adversely.  Wainvian  v.  Hampton,  20 
Week.  Dig.  68.  Under  this  section  the  title  of  the  various  par- 
ties to  the  property  may  be  disputed  and  determined.  SJiannon 
V.  Pickcll,  2  St.  Rep.   160. 

An  allegation  that  the  defendant's  wife  has  an  inchoate  right 
of  dower,  and  is  a  necessary  party  to  the  action,  does  not  state  a 
defence.  Kay  v.  WJiitakcr,  44  N.  Y.  565.  A  tenant  in  common 
may  set  up  that  plaintiff  has  been  in  sole  possession,  and  collected 
the  rents  of  the  premises,  and  require  an  accounting  and  allowance 
therefor.  McCabe  v.  McCabc,  18  Hun,  153.  See  Ford  v.  Knapp, 
102  N.  Y.  135. 

An  adverse  possession  by  the  defendants  for  a  period  less  than 
the  time  prescribed  by  law  to  bar  a  possessory  action  is  not  a 
defence  to  an  action  of  partition;  the  intent  of  §  1543  being  to 
confer  upon  the  court  in  which  the  action  for  partition  may  be 
brought  authority  to  try  and  determine  all  questions  which  may 
arise  between  the  plaintiff  and  his  co-tenants  involving  their 
respective  title  and  right  of  possession  of  the  property.  The  fact 
that  by  §  1537  it  is  provided  that  a  party  out  of  possession  may 
maintain  the  action  when  he  claims  by  reason  of  heirship,  does 


PARTITION.  177 


Art.  9.     What  Questions  may  be  Tried  in  the  Action  and  in  What  Manner. 

not  limit  the  right  of  the  party  out  of  possession  to  maintain  an 
action  under  §  1543.  One  of  several  tenants  in  common  can 
maintain  the  action  though  his  co-tenants  are  in  possession  hold- 
ing adversely,  where  the  adverse  possession  had  not  been  in  force 
a  sufificient  length  of  time  to  extinguish  the  plaintiff's  title. 
Weston  V.  Stoddard,  137  N.  Y.  119.  In  opinion,  Maynard,  J.,  in 
that  case  said  :  "  In  recent  works  on  practice  of  high  authority, 
§  1 543  has  been  construed  as  abrogating  the  rule  which  prevented 
a  recovery  by  a  disseized  co-tenant,  and  providing  for  the  trial  and 
determination  in  the  partition  action  of  all  issues  involving  title 
and  right  of  possession  of  all  the  parties  [citing  Rum.sey's  Prac- 
tice, 3d  vol.  pages  31,  41  ;  Fiero  on  Special  Actions,  pages  91  and 
92.]  We  perceive  no  good  reason  for  questioning  the  soundness 
of  this  discussion.  The  circuity  of  procedure  and  the  multiplicity 
of  suits  are  thereby  avoided  and  these  were  primary  objects  which 
the  code  system  of  practice  had  in  view."  This  settles  the  rule 
as  to  which  conflicting  decisions  have  been  made  in  Shajmon  v. 
Pickcll,  2  St.  Rep.  160;  Hulsc  v.  Hulsc,  23  St.  Rep.  123;  Jones 
V.  Jones, 6  St.  Rep.  736;  Greene  v.  Grceiu\2i  St.  Rep.  869;  Ged- 
ney  v.  Prall,  25  St.  Rep.  343  ;  Knapp  v.  Bnrton,  7  Civ.  Pro.  R.  448. 

Ford  V.  Knapp,  102  N.  Y.  135,  is  cited  and  followed  in  Thomas 
V.  Evans,  105  N.  Y.  601,  to  the  point  that  where  a  person  in 
peaceable  possession  under  claim  of  lawful  title,  but  really  under 
a  defective  title,  has  in  good  faith  made  permanent  improvements, 
the  true  owner,  who  seeks  the  aid  of  equity  to  establish  his  title, 
will  be  compelled  to  reimburse  the  occupant  for  his  expenditures. 

The  provisions  of  the  Code  from  §^  1537  to  1543  inclusive, 
indicate  an  intention  to  authorize  all  persons  having  or  claiming 
to  have  an  interest  in  or  lien  upon  real  estate  to  be  made  parties 
to  actions  of  partition,  and  to  authorize  the  hearing  and  determi- 
nation of  such  conflicting  interests  in  such  actions,  so  that  when 
the  real  estate  in  question  is  divided  or  sold,  all  clouds  upon  the 
title  thereof  may  be  remedied  and  the  title  thereto  settled. 
Not  only  a  person  who  actually  has  a  lien  upon  or  interest  in  the 
property  sought  to  be  partitioned,  but  one  who  apparently  has 
or  claims  to  have  a  lien  or  interest  in  the  entire  property,  may  be 
made  a  party  to  the  action.  Best  v.  Zeh,  82  Hun,  232,  affirmed, 
146  N.  Y.  363. 

Under  these  provisions  of  the  Code,  it  has  been  said  that  all 
questions  arising  between  the  parties  in  respect  to  the  property  as  to 
[Special  Actions  —  12.] 


1/8  PARTITION. 


Art.  9.     What  Questions  may  be  Tried  in  the  Action  and  in  What  Manner. 


their  respective  titles  and  rights  of  possession  may  be  determined. 
Ellerson  v.  Prcscott,  88  Hun,  389,  citing  Weston  v.  Stoddard^  137 
N.  Y.  119;  Collins  V.  Collins,  36  St.  Rep.  591,  affirmed,  131  N.  Y. 
648;  Shannon  v.  Pickcll,  2  St.  Rep.   160. 

Sub.  2.   Issues  ok  Fact  Triable  by  Jury.     §  1544. 

§  1544.  Issues  of  fact  triable  by  jury. 

An  issue  of  fact  joined  in  the  action  is  triable  by  a  jury.  Unless  the  court 
directs  the  issues  to  be  stated,  as  prescribed  in  section  970  of  this  act,  the  issues 
may  be  tried  upon  the  pleadings. 

The  action  of  partition  is  an  equitable  action,  but  a  jury  trial 
of  the  issues  of  fact  presented  by  the  pleadings  is  a  matter  of 
right.  The  Special  Term  has  authority  to  direct  issues  of  fact  to 
be  settled  and  tried,  and  that  the  verdict  of  the  jury  be  certified 
to  the  court  for  further  proceedings,  and  it  is  in  the  discretion  of 
the  court  whether  this  course  shall  be  taken,  or  whether  the  case 
shall  be  placed  on  the  circuit  calendar  for  trial.  The  form  of  the 
issues  is  discretionary,  and  the  order  settling  them  not  reviewable 
in  the  Court  of  Appeals.  The  issues  as  settled  may  be  amended 
on  the  trial,  or  additional  issues  submitted,  as  the  proof  warrants. 
Hewlett  v.  Wood,  62  N.  Y.  75.  Where,  under  the  provisions  of 
§  1537,  an  issue  was  made,  and  the  party  answering  suffered 
default,  the  plaintiff  was  held  concluded  by  default,  as  to  the 
issues.  Curry  v.  Colgan,  3  How.  (N.  S.)  26.  Although  there  are 
many  defendants  and  separate  appearances,  and  four  distinct  issues 
of  fact,  two  of  which  relate  to  distinct  pieces  of  property,  and  the 
other  two  affect  undivided  .shares  in  the  whole  remainder,  the 
case  must  be  tried  by  a  jury  if  any  party  objects  to  a  reference; 
but  the  action  can  be  severed  so  as  to  try  before  a  referee  all  but 
the  issues  raised  by  a  claim  of  ownership  to  two  pieces  of  the 
property.      Cassedy  v.  Wallace,  61  How.  240. 

It  seems  that  as  the  Code  provides  by  this  section  that  issues 
of  fact  in  an  action  of  partition  are  triable  by  a  jury,  the  trial 
court  may  not  disregard  the  findings  of  the  jury.  Exceptions 
taken,  therefore,  on  the  trial  before  the  jury  may  be  considered  on 
appeal  from  the  judgment.  The  issue  of  fact  provided  for  by 
this  section  is  an  issue  which  involves  the  right  to  maintain  the 
action.  It  has  no  application  unless  some  defence  is  interposed, 
which,  if  successful,  will  prevent  any  partition  whatever.  It  does 
not  apply  to  the  case  in  which  the  only  matters  in  controversy 


PARTITION.  179 

Art.  10.     Reference  as  to  Title  and  as  to  Creditors. 

relate  directly  or  indirectly  to  the  amounts  with  which  the  respec- 
tive shares  are  chargeable.     Brozun  v.  Broivn,  52  Hun,  532. 

As  the  Code  provides  that  issues  of  fact  in  an  action  for  parti- 
tion are  triable  by  jury,  the  trial  court  may  not  disregard  the 
verdict  of  a  jury;  the  exceptions  thereto  may  be  considered  on 
appeal  from  judgment.  Jones  v.  Jones,  120  N.  Y.  589.  Hew- 
lett V.  Wood,  62  N.  Y.  75,  is  cited  with  approval  upon  this 
point  in  Weston  v.  Stoddard,  137  N.  Y.  119,  and  in  Boz^'en  v. 
Sweeney,  143  N.  Y.  349,  it  is  held  that  where  in  an  action  of  par- 
tition, issues  of  fact  were  framed  for  a  jury  and  trial  so  had, 
and  upon  consent  of  the  parties  further  hearing  was  had  at  special 
term,  and  the  court  made  findings  and  conclusions  of  law  incorpo- 
rating findings  of  the  jury,  and  an  interlocutory  judgment  was 
entered,  that  a  motion  for  a  new  trial  at  General  Term  was  prop- 
erly dismissed,  that  the  issues  in  the  action  were  triable  by  a  jury 
as  matter  of  right  and  the  facts  found  were  binding  upon  Special 
Term,  so  that  the  trial  was  not  by  the  court  without  a  jury  within 
the  meaning  of  §  looi  authorizing  a  motion  for  a  new  trial  after 
entry  of  an  interlocutory  judgment. 

An  action  in  partition  is  triable  by  a  jury,  but  where  at  the  request 
of  plaintiffs  the  action  has  been  tried  by  the  court,  plaintiffs  can- 
not complain  if  the  court  upon  appeal  determines  the  question  as 
to  the  right  to  mainain  the  action,  as  if  the  case  were  one  triable 
at  Special  Term.     Side  v.  Brenneman,  7  App.  Div.  273. 

An  order  in  an  action  for  partition,  that  the  issues  of  fact  be 
tried  by  a  jury  is  proper,  but  such  order  should  direct  a  verdict 
to  be  certified  to  the  Special  Term  and  not  to  the  judge  granting 
the  order.      Cuthbert  v.  Ives,  48  St.  Rep.  740. 


ARTICLE  X. 

Reference  as  to  Title   and  as  to   Creditors.    §§  1545, 

1 561,  1562.     Rule  66. 

Sub   I.  Reference  as  to  title,  §  1545.    Rule  66. 
2.  Reference  as  to  creditors.     §§  1561,  1562. 

Sub.  I.   Referencf,  as  to  Title.     Rule  66. 

§  1545.  When  title  to  be  ascertained  by  the  court. 

Where  a  defendant  has  made  default  in  appearing  or  pleading,  or  where  a 
party  is  an  infant,  the  court  must  ascertain  the  rights,  shares,  and  interests  of 
the  several  parties  in  the  property,  by  a  reference  or  otherwise,  before  interlocu- 
tory judgment  is  rendered  in  the  action. 


l80  PARTITION. 


Art.  lo.     Reference  as  to  Title  and  as  to  Creditors. 


Rule  66.  —  Reference  as  to  title. 

Where  the  rights  and  interests  of  the  several  parties,  as  stated  in  the  com- 
plaint, are  not  denied  or  controverted,  if  any  of  the  defendants  are  infants  or 
absentees,  or  unknown,  the  plaintiff,  on  an  affidavit  of  the  fact,  and  notice  to 
such  of  the  parties  as  have  appeared,  may  apply  at  a  Special  Term  for  an  order 
of  reference,  to  take  proof  of  the  plaintiff's  title  and  interest  in  the  premises, 
and  of  the  several  matters  set  forth  in  the  complaint;  and  to  ascertain  and 
report  the  rights  and  interests  of  the  several  parties  in  the  premises,  and  an 
abstract  of  the  conveyance  by  which  the  same  are  held.  Such  referee  shall,  in 
all  cases,  be  selected  by  the  court. 

The  court  may  direct  a  reference  to  inquire  into  the  Hen  of 
judgment.s  recovered  against  executors,  although  not  strictly 
.statutory  liens  upon  the  lands  when  they  are  chargeable  thereon, 
there  being  no  personal  estate.  Piatt  v.  Piatt,  4  St.  Rep.  50. 
Where  an  answer  has  been  interposed  which  fails  to  raise  an 
issue,  the  proper  practice  is  to  move  for  a  reference  to  take  proof 
of  plaintiff's  title  and  interest  in  the  premises,  and  of  the  matters 
set  forth  in  the  complaint,  and  a  motion  for  judgment  upon  the 
pleadings  is  properly  denied.      Tilton  v.  /  «//,  24  Week.  Dig.  "j^. 

The  referee  should  require  the  complainant  to  produce  abstracts 
of  title,  as  a  tenant  in  common  of  the  premises,  and  to  trace  it 
back  to  the  common  source  of  title  of  the  tenants  in  common  ;  and 
he  should  give  an  abstract  of  the  conveyances  of  the  several  undi- 
vided shares  of  the  parties  in  the  premises  from  the  time  the  seve- 
ral shares  were  united  in  one  common  source.  Hamilton  v. 
Morris^  7  Paige,  39.  If  the  referee  states  explicitly  that  he  has 
caused  the  necessary  searches  to  be  made,  and  certifies  what 
incumbrances  there  are,  it  is  sufBcient,  and  he  is  not  required  to 
annex  to  his  report  a  search  for  mortgages,  etc.,  affecting  the  title. 
Noble  v.  Croimvcll,  27  How.  289.  It  is,  however,  usual  and  the 
better  practice  to  do  so.  Whether  land  sold  on  a  partition  sale 
should  be  sold  in  parcels  or  not,  is  usually  left  to  the  referee  to 
decide,  subject  to  the  approval  of  the  court.  Under/nil  v.  Undcr- 
hill,  4  St.  Rep.  858.  The  facts  should  be  reported  making  a  sale 
necessary;  it  is  not  sufficient  to  give  an  opinion.  Tucker  v. 
Tucker,  19  Wend.  226.  As  judgments  do  not  cease  to  be  a  lien 
again.st  heirs-at-law  at  the  end  of  ten  years,  parties  who  do  not 
advertise  for  liens  should  produce,  at  their  own  cost,  searches 
for  at  least  twenty  years.  Hall  \f.  Partridge,  10  How.  188.  The 
referee  is  authorized  to  take  proof  and  pass  upon  the  question  as 
to  the  validity  of  a  mortgage,  upon  an  undivided  share  claimed  by 
one  of  the  parties,  although   there   is  no  issue   in  the  pleadings 


PARTITION.  l8l 


Art.  lo.     Reference  as  to  Title  and  as  to  Creditors. 

raising  the  question.  Halstcdv.  Halstcd,  55  N.  Y.  442.  He  is 
to  report  as  to  whether  an  actual  partition  can  be  had.  Wa/lcr  v. 
Waller,  3  Abb.  N.  C.  12.  Where  the  report  states  that  the 
portion  set  off  for  the  widow's  dower  constitutes  a  valuable 
farm,  and  if  divided  among  the  heirs  the  parcel  assigned  to 
each  would  be  so  small  as  to  be  of  little  value  and  would 
naturally  lessen  the  value  of  the  whole,  the  reason  assigned 
is  entirely  satisfactory,  and  the  same  reason  would  be  suffi- 
cient for  the  court  to  authorize  a  sale  thereof  subject  to 
the  widow's  dower.  Post  v.  Post,  65  Barb.  193.  A  referee 
appointed  in  partition  to  take  proof,  etc.,  is  bound  by  the  plead- 
ings and  cannot  find  the  interests  of  the  parties  otherwise  than  as 
stated  or  admitted  in  such  pleadings.  McAlcar  v,  Dclancy,  19 
Week.  Dig.  252.  And  the  sale  of  leased  lands  may  be  made  sub- 
ject to  the  rights  of  the  lessees  who  thereby  become  the  tenants 
of  the  purchasers.  WoothvortJi  v.  Campbell,  5  Paige,  518.  So 
the  furniture  of  a  hotel  may  be  sold  with  it  if  it  appears  that  in  that 
way  the  property  can  be  disposed  of  to  better  advantage  than  in 
any  other.  Prentiee  v.  Jansseii,  79  N.  Y.  478.  Where  the  court 
has  jurisdiction,  its  determination  as  to  whether  there  shall  be 
a  sale  or  partition  is  conclusive.  Clemens  v.  Clemens,  37  N.  Y. 
59;  Seott  V.  Guernsey,  48  N.  Y.   106. 

The  plaintiff  is  concluded  by  a  default  as  to  the  facts  in  issue. 
Curry  v.  Colgan,  3  How.  Pr.  (N.  S.)  26. 

Where,  under  an  order  of  reference  to  inquire  and  report,  the 
referee  reports  correct  findings  of  fact  but  erroneous  conclusions 
of  law  thereon,  Special  Term  is  not  required  to  send  it  back  for 
correction,  but  may,  without  exception,  draw  the  legal  conclu- 
sions from  the  facts.     Austin  v.  Ahearne,  61    N.  Y.  6, 

Precedent  for  Notice  of  Application  for  Order  of  Reference. 

SUPREME  COURT  — Albany  County. 


JOHN  W.  McHARG  and   HARRIETTS  D. 
McHARG,  HIS  Wife,  Plaintiffs, 

ngs(. 

RUFUS  K.  McHARG  and  HARRIET  S. 
McHARG,  HIS  WIF^;,  and  Othkrs,  De- 
fendants. 


(■ 


Sirs. —  You  will  please  take  notice  that  upon  the  summons  and  com- 
plaint and  the  supplemental  summons  and  amended  complaint  in  this 


l82  PARTITION. 


Art.  lo.     Reference  as  to  Title  and  as  to  Creditors. 


action  with  proof  of  service  thereof  upon  the  defendants,  and  upon 
the  affidavit  of  Marcus  T.  Hun,  verified  the  22d  day  of  December, 
1891,  a  copy  of  which  is  herewith  served  upon  you,  and  upon  all  the 
papers  heretofore  served  and  proceedings  had  in  the  above-entitled 
action,  the  Supreme  Court  will  be  moved  at  a  Special  Term  thereof 
to  be  held  at  the  City  Hall,  in  the  city  of  Albany,  on  the  29th  day 
of  December,  1891,  at  the  opening  of  the  court  on  that  day,  or  as 
soon  thereafter  as  counsel  can  be  heard,  for  an  order  appointing  a 
referee  to  ascertain  the  rights,  shares  and  interests  of  the  several 
parties  in  the  property  sought  to  be  partitioned  in  this  action,  and 
an  abstract  of  the  conveyances  by  which  the  same  are  held,  and  to 
take  proof  of  the  plaintiff's  title  and  interest  in  said  premises  and  of 
the  several  matters  set  forth  in  the  complaint  and  to  report  whether 
said  property  or  any  part  thereof  is  so  circumstanced  that  a  parti- 
tion thereof  cannot  be  made  without  great  prejudice  to  the  owners, 
and  for  such  other  and  further  relief  as  may  be  proper. 

Yours,  etc., 

MARCUS  T.   HUN, 

Attorney  for  Plaintiffs. 

To  Hon.  Charles  F.  Tabor,  Attorney-General,  Attorney  for  the 
Defendant,  the  People  of  the  State  of  New  York;  Frank  W.  Stevens, 
Esq.,  Attorney  for  Robert  N.  Marvin  and  Elizabeth  Marvin,  and  for 
Robert  N.  Marvin,  guardian  ad  litem  for  Isabella  Marvin  and  Maude 
Marvin. 


Precedent   for  Affidavit   on   Motion    for   Order    Appointing 

Referee  in   Partition. 

SUPREME  COURT  — Albany  County. 


JOHN  W.  McHARG  and  HARRIETTE  D. 
McHARG,  HIS  Wife,  Plaintiffs, 

agst. 

RUFUS  K.  McHARG  and  HARRIET  S. 
McHARG,  his  Wife,  and  Others,  De- 
fendants. 


State  of  New  York, 
Albany  City  and  County, 

Marcus  T.  Hun,  of  said  city,  being  duly  sworn,  says  that  he  is  the 
attorney  for  the  plaintiffs  in  the  above-entitled  action.  That  said 
action  has  been  brought  to  obtain  a  partition  of  a  sale  and  division  of 
the  proceeds  of  the  real  property  described  in  the  complaint,  among 
the  owners  thereof,  according  to  their  respective  interests  therein; 
and  to  pass  the  accounts  of  the  plaintiff  John  W.  McHarg  on  account 
of  rents  received  by  him  from  said  property. 

That  the  summons  has  been  duly  personally  served  upon  all  the 
defendants  herein,  within  the  State  of  New  York,  more  than  twenty 


PARTITION.  183 


Art.  10.      Reference  as  to  Title  and  as  to  Creditors. 


days  since,  except  upon  the  defendants  Fredericka  B.  McHarg, 
Richard  P.  Marvin,  Jr.,  William  Donaldson,  John  M.  Wood,  Sophia 
K.  Porter,  Grace  Ann  Mattocks,  Dudley  W.  Mattocks,  Mary  E. 
Goodrich,  Katharine  F.  Clarke,  Francis  W.  Forbes,  John  Doe, 
Richard  Roe,  Jane  Smith  and  Mary  Jones  (the  last  four  names 
being  fictitious  names),  who  have  been  served  by  publication, 
pursuant  to  an  order  of  Hon.  Samuel  Edwards,  a  Justice  of  the 
Supreme  Court,  more  than  twenty  days  since. 

That  on  November  6th,  1891,  an  order  was  made  by  the  Special 
Term  of  the  Supreme  Court,  upon  due  notice,  to  all  the  parties  en- 
titled thereto,  making  Evelyn  N.  Post  and  Daniel  H.  Post,  her  hus- 
band, and  also  John  J.  Kinney  and  Frederick  A.  Bentley,  as  execu- 
tors under  the  last  will  and  testament  of  Robert  Newland,  deceased, 
parties  defendant  herein ;  which  order  also  directed  the  issuance  of 
a  supplemental  summons,  directed  to  said  Evelyn  N.  Post,  Daniel 
H.  Post,  her  husband,  and  to  John  J.  Kinney  and  Frederick  A. 
Bentley,  as  executors  under  the  last  will  and  testament  of  Robert 
Newland,  deceased;  and  also  allowed  the  plaintiffs  to  serve  an 
amended  complaint. 

That  said  persons,  so  made  defendants  by  the  order  of  November 
6th,  1891,  have  duly  appeared  herein;  that  the  time  to  answer  has 
expired  as  to  all  of  the  defendants;  and  that  no  answer,  demurrer, 
or  notice  of  appearance  has  been  received  from  them,  or  any  of 
them,  except  that  the  defendant  The  People  of  the  State  of  New 
York  has  appeared  herein  by  Hon.  Charles  F.  Tabor,  its  attorney- 
general,  but  has  not  answered  or  demurred. 

That  the  defendants  John  J.  Kinney  and  Frederick  A.  Bentley,  as 
executors  under  the  last  will  and  testament  of  Robert  Newland, 
deceased,  Evelyn  N.  Post  and  Daniel  H.  Post,  her  husband,  having 
appeared  herein  by  Frank  W.  Stevens,  Esq.,  their  attorney,  but 
have  not  answered  or  demurred. 

That  the  defendants  Isabella  Marvin  and  Maude  Marvin  are  infants, 
and  that  Robert  N.  Marvin  has  been  appointed  their  guardian  ad 
litem,  by  an  order  duly  granted  by  this  court.  That  said  Robert 
N.  Marvin,  as  such  guardian,  has  appeared  herein  by  Frank  W. 
Stevens,  his  attorney,  who  has  interposed  the  usual  general  answer 
on  behalf  of  said  infants,  not  denying  any  of  the  material  allegations 
of  the  complaint,  and  submitting  the  rights  of  said  infants  to  the 
protection  of  the  court. 

That  the  defendant  Katharine  L.  Clarke  is  an  infant,  who  has 
appeared  herein  by  James  Fenimore  Cooper,  Esq.,  her  guardian  ad 
litem,  who  has  interposed  the  usual  general  answer  on  behalf  of  said  in- 
fant, not  denying  any  of  the  material  allegations  of  the  complaint,  and 
submitting  the  rights  of  said  infant  to  the  protection  of  the  court. 

That  none  of  the  defendants,  other  than  those  so  stated  to  be,  are 
infants  or  absentees.  That  certain  of  said  defendants  are  desig- 
nated by  fictitious  names,  but  whether  said  persons  so  designated 
have  any  interest  in  the  premises  in  question,  or  whether  they  are 
infants  or  not,  this  deponent  is  unable  to  state. 

That  a  notice  of  the  pendency  of  the  above-entitled  action,  and  an 
amended  notice  of  the  pendency  of  the  above-entitled  action,  con- 


1 84 


PART  mux. 


Art.  lo.     Reference  as  to  Title  and  as  to  Creditors. 


taining  the  names  of  the  parties  thereto,  the  object  of  the  action 
and  a  description  of  the  property  affected  thereby,  together  with 
the  complaint  herein  and  the  amended  complaint  herein,  were  duly 
filed  in  the  office  of  the  clerk  of  Albany  county,  more  than  twenty 
days  since. 

(Jurat.)  (Signature.) 


Precedent  for  Order  of  Reference. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  City  Hall  in  the  city  of  Albany,  on  the  29th  day  of 
December,  1891. 

Present — -Hon.  Stephen  L.  Mayham,  Justice. 
SUPREME  COURT  — Albany  County. 


JOHN  V.    McHARG  and  HARRIETTS  D. 
McHARG,  His  Wife,  Plaintiffs, 

agst. 

RUFUS  K.  McHARG  and  HARRIET  S. 
McHARG,  His  Wife,  and  Others,  De- 
fendants. 


On  filing  proof  of  the  personal  service  of  the  summons  and  com- 
plaint in  this  action  upon  the  defendants  Rufus  K.  McHarg,  Harriet 
S.  McHarg,  his  wife;  Charles  K.  McHarg,  Harriet  P.  McHarg,  his 
wife;  William  N.  McHarg  and  Selima  S.  McHarg,  his  wife;  Henry 
K.  McHarg,  Franklin  Clarke  and  Louie  O.  Clarke,  his  wife;  Selden 
E.  Marvin  and  Katharine  L.  Marvin,  his  wife;  Robert  N.  Marvin 
and  Elizabeth  Marvin,  his  wife,  David  F.  Cassort  and  Flora  A.  Cas- 
sort,  his  wife;  Horace  Porter,  Francis  N.  Forbes,  Katharine  N. 
Cornell,  J.  William  Cornell,  her  husband;  Sarah  Jane  Hall  and  Erie 
L.  Hall,  her  husband,  Isabella  Marvin,  Maud  Marvin,  Margaret  E. 
Cassort  and  Franklin  D.  Cassort,  her  husband;  and  the  People  of 
the  State  of  New  York;  and  on  filing  due  proof  of  the  service  of  the 
summons  upon  the  defendants,  Fredericka  B.  McHarg,  Richard  P. 
Marvin,  Jr.,  William  Donaldson,  John  M.  Wood,  Sophia  K.  Porter, 
Francis  W.  Forbes,  Katharine  F.  Clarke,  Grace  Ann  Mattocks,  Dudley 
W.  Mattocks,  Mary  E.  Goodrich,  John  Doe,  Richard  Roe,  Jane 
Smith  and  Mary  Jones  (the  last  four  names  being  fictitious  names) 
by  publication,  pursuant  to  an  order  of  Hon.  Samuel  Edwards,  a 
Justice  of  the  Supreme  Court,  and 

On  filing  a  notice  of  the  pendency  of  this  action  in  the  Albany 
county  clerk's  office  more  than  twenty  days  since;  and  it  appearing 
that  John  J.  Kinney  and  Frederick  A.  Bentley,  as  executors  under 
the  last  will  and  testament  of  Robert  Newland,  deceased,  Evelyn 
N.  Post,  and  Daniel  H.  Post,  her  husband,  who  were  made  parties 
defendant  herein  by  an  order  duly  granted  on  the  6th  day  of  Novem- 
ber, 1 89 1,  have  appeared  herein;  and 


PARTITION.  185 


Art.  10.     Reference  as  to  Title  and  as  to  Creditors. 


On  reading  and  filing  the  afifidavit  of  Marcus  T.  Hun,  Esq.,  verified 
the  22d  day  of  December,  1891,  proving  that  none  of  said  defendants 
who  are  known  to  the  plaintiffs  are  infants,  except  the  defendants 
Isabella  Marvin,  Maud  Marvin,  and  Katharine  F.  Clarke.  That 
none  of  said  defendants  are  absentees,  except  those  above  mentioned 
as  having  been  served  with  the  summons  herein  by  publication. 
That  the  time  to  answer  has  expired  as  to  all  of  said  defendants; 
and  that  no  answer,  demurrer  or  notice  of  appearance  has  been 
received  herein,  except  that  the  defendant  the  People  of  the  State 
of  New  York  has  appeared  herein  by  Hon.  Charles  F.  Tabor,  its 
attorney-general;  but  has  not  answered  or  demurred.  That  the 
defendants  John  J.  Kinney  and  Frederick  A.  Bentley,  as  executors 
under  the  last  will  and  testament  of  Robert  Newland,  deceased, 
Evelyn  N.  Post  and  Daniel  H.  Post,  her  husband,  have  appeared 
herein  by  John  J.  Kinney,  Esq.,  their  attorney;  but  have  not 
answered  or  demurred.  That  the  defendants  Robert  N.  Marvin 
and  Elizabeth  Marvin  have  appeared  by  Frank  W.  Stevens,  Esq., 
their  attorney,  but  have  not  answered  or  demurred.  That  the  de- 
fendants Isabella  Marvin  and  Maud  Marvin  are  infants,  for  whom 
Robert  N.  Marvin  has  been  appointed  guardian  ad  litem^  and  that 
he  has  appeared  herein  as  such  guardian  by  Frank  W.  Stevens,  Esq., 
his  attorney,  who  has  interposed  the  usual  general  answer  on  behalf 
of  said  infants  not  denying  any  of  the  material  allegations  of  the 
complaint,  and  submitting  the  rights  of  said  infants  to  the  protec- 
tion of  the  court.  That  the  defendant  Katharine  F.  Clarke  is  an 
infant,  and  has  appeared  herein  by  James  Fenimore  Cooper,  Esq., 
her  guardian  ad  liiein^  who  has  interposed  the  usual  general  answer 
on  behalf  of  said  infant,  not  denying  any  of  the  material  allegations 
of  the  complaint,  and  submitting  the  rights  of  said  infant  to  the 
protection  of  the  court;  and 

On  reading  and  filing  proof  of  service  of  due  notice  of  this  motion 
on  Hon.  Charles  F.  Tabor,  Attorney-General,  for  the  People  of  the 
State  of  New  York;  Frank  W.  Stevens,  Esq.,  attorney  for  Robert 
N.  Marvin,  Elizabeth  Marvin,  his  wife,  and  Robert  N.  Marvin, 
guardian  ad  litem  for  Isabella  Marvin  and  Maud  Marvin,  John  J. 
Kinney,  attorney  for  John  J.  Kinney  and  Frederick  A.  Bentley,  as 
executors  under  the  last  will  and  testament  of  Robert  Newland, 
deceased,  Evelyn  N:  Post,  and  Daniel  H.  Post,  her  husband,  and 
James  Fenimore  Cooper,  Esq.,  guardian  ad  litem  for  Katharine  F. 
Clarke,  and  after  hearing  Marcus  T.  Hun,  Esq.,  on  behalf  of  the 
plaintiffs,  and  due  deliberation  having  been  had,  it  is. 

Ordered,  That  William  Bayard  Van  Rensselaer,  Esq.,  of  the  city 
of  Albany,  a  counselor  of  this  court,  be  and  he  is  hereby  appointed 
a  referee  in  the  above  entitled  action,  to  ascertain  and  report 
the  rights,  shares  and  interests  of  the  several  parties  to  this 
action,  in  the  property  described  in  the  complaint  and  of  which 
a  partition  is  sought;  and  of  the  rents  so  collected,  and  an 
abstract  of  the  conveyances  by  which  the  same  are  held ;  and  to  take 
proof  of  the  plaintiff's  title  and  interest  in  said  premises;  and  of  the 
several  matters  set  forth  in  the  complaint  and  amended  complaint; 
and  to  report  whether  the   property,  or  any  part  thereof,  is  so  cir- 


1 86 


PARTITION. 


Art.  lo.     Reference  as  to  Title  and  as  to  Creditors. 


cumstanced  that  a  partition  thereof  cannot  be  made  without  great 
prejudice  to  the  owners;  and  if  he  arrives  at  the  conclusion  that  a 
sale  of  said  property  or  any  part  therof  is  necessary;  then,  that  he 
ascertain  whether  there  is  any  creditor,  not  a  party  to  this  action, 
who  has  a  lien  upon  the  individual  share  or  interest  of  any  party. 

A.   C.   REQUA, 

Clerk. 


Precedent  for  Report  of  Referee  as  to  Interests,  etc.,  of  Par- 
ties and  Abstract  of  Title. 

SUPREME  COURT. 


DUBOIS    L.   HORNBECK 

agst. 
EMZEY  HORNBECK,  etc. 


To  the  Supreme  Court  of  the  State  of  Neiv  York  : 

In  pursuance  of  an  order  of  this  court,  made  in  the  above-entitled 
action  on  the  8th  day  of  December,  1887,  by  which  it  was  referred  to 
the  undersigned  to  hear  and  determine  the  issue  made  by  the  answer 
of  the  defendant,  Rachel  Hornbeck,  herein,  and  to  take  proof  of  the 
title  of  the  respective  parties  in  the  said  premises  and  report  thereon 
to  this  court,  with  an  abstract  of  the  conveyances  by  which  the  title 
is  held,  and  also  to  inquire  and  report  whether  the  whole  premises 
or  any  lot  or  separate  parcel  thereof  is  so  circumstanced  that  an 
actual  partition  cannot  be  made,  and  if  the  undersigned  should  so 
determine  and  that  a  sale  of  the  whole  or  a  part  thereof  was  neces- 
sary, that  the  undersigned  should  specify  the  same  in  his  report, 
together  with  the  reasons  which  render  a  sale  necessary,  and  in 
such  a  case  that  the  undersigned  also  ascertain  and  report  whether 
any  creditor  not  a  party  to  the  action  having  a  specific  lien  by  mort- 
gage or  devise  or  otherwise  upon  the  undivided  share  or  interest  of 
any  of  the  parties  in  that  portion  of  the  premises  which  is  necessary 
to  sell,  and  that  he  then  further  inquire  and  report  whether  the  un- 
divided share  or  interest  of  any  of  the  parties  in  the  premises  is 
subject  to  a  general  lien  or  incumbrance  by  judgment  or  decree. 

And  it  was  further  ordered,  that  the  undersigned  ascertain  and 
report  the  amount  due  to  any  party  to  the  action  who  has  either  a 
general  or  specific  lien  upon  the  premises  to  be  sold,  or  any  part 
thereof,  and  the  amount  due  to  any  creditor  not  a  party  to  the  action 
who  has  a  general  lien  on  any  undivided  part,  share  or  interest 
therein,  Dy  judgment  or  decree,  and  who  shall  appear  and  establish 
his  claim  on  such  reference. 

I,  the  subscriber,  referee  as  aforesaid,  do  respectfully  report: 

That  I  have  been  presented  with  a  search,  certified  by  the  clerk 
of  Ulster  county,  in  and  by  which  it  appears  that  there  is  no  general 
or  specific  lien  or  incumbrance  on  the  whole  premises  or  upon  any 


PARTITION.  187 


Art.  10.     Reference  as  to  Title  and  as  to  Creditors. 


undivided  share  or  interest  therein  held  by  any  party,  either  a  party 
to  this  action  or  otherwise. 

1  further  report  that  1  have  taken  proof  and  that  there  are  no 
general  or  specific  liens  or  incumbrances  on  the  whole  of  said  premi- 
ses, or  upon  any  undivided  share  or  interest  therein  held  by  any 
party,  either  a  party  to  this  action  or  otherwise,  and  that  the  only 
possible  lien  there  may  be  on  said  premises  is  the  lien  which  is  made 
by  statute  of  the  debts  of  Henry  B.  Hornbeck,  deceased,  on  the 
said  premises  and  the  amount  of  such  debts,  if  any,  I  am  not  able 
to  state,  as  the  administrator  of  said  estate  has  not  yet  advertised 
for  claims  against  said  estate. 

That  1  have  been  attended  by  the  several  attorneys  who  have 
appeared  in  this  action,  and  have  taken  proof  of  the  several  matters 
submitted  to  me. 

That  1  have  taken  proof  of  the  several  material  matters  set  forth 
in  the  complaint,  and  find  that  the  material  facts  alleged  therein 
are  true. 

That  the  following  is  an  abstract  of  the  conveyances  by  which  the 
premises  described  in  said  complaint  are  held,  that  is  to  say: 

Nicholas  Elmendorf  and  wife  to  Henry  B.  Hornbeck. 

Warranty  deed  dated  June  i,  1850.  Recorded  in  Ulster  county 
clerk's  office.  Book  of  Deeds  No.  76,  at  page  250,  June  8,  1850. 

Consideration  $500.   Conveys  sixty  acres,  part  of  land  in  question. 

DuBois  Hornbeck  and  wife  to  Henry  B.  Hornbeck. 

Full  covenant  deed  dated  June  8,  1872.  Recorded  in  Ulster 
county  clerk's  office.  Book  of  Deeds  No.  176,  page  508,  June  10, 
1872. 

Consideration,  $750.  Conveys  one  acre,  part  of  property  in 
question. 

Jacob  Davis  and  wife  to  Henry  B.  Hornbeck. 

Full  covenant  deed  dated  February  24,  1872.  Recorded  in  Ulster 
county  clerk's  office.  Book  of  Deeds  No.  176,  page  5 10,  June  10,  1872. 

Consideration,  $1,000.  Conveys  forty  acres,  part  of  property  in 
question. 

Daniel  Hasbrouck  and  wife  to  Henry  B.  Hornbeck. 

Warranty  deed  dated  June  10,  1841.  Recorded  in  Ulster  county 
clerk's  office  in  Book  of  Deeds  No.  56,  page  727,  June  17,  1841. 

Consideration,  $1,050.     Conveys  ten  acres,  part  of  the  premises  in 
question. 

Henry  B.  Hornbeck  died  intestate  about  the  19th  day  of  Septem- 
ber, 1887,  leaving  a  widow  and  his  only  heirs-at-law  as  follows: 

Rachel  Hornbeck,  his  widow;  Emzey  Hornbeck,  a  son;  Catherine 
J.  Garrison,  a  daughter;  John  H.  Hornbeck,  a  son;  Alexander 
Hornbeck,  a  son;  Sylvenus  Hornbeck,  a  son;  Peter  L.  Hornbeck, 
a  son;   DuBois  L.  Hornbeck,  a  son. 

I  further  report  that  the  rights  and  interests  of  the  parties  in  the 
premises  are  as  follows: 

The  defendant  Rachel  Hornbeck  has  a  right  of  dower  in  the 
whole  premises  as  widow  of  Henry  B.  Hornbeck;  that  the  plaintiff, 
DuBois  L.  Hornbeck,  is  entitled  to  the  undivided  one-seventh  part 
of  said  premises,  subject  to  the  dower  interest  of  the  said  Rachel 


1 88  PARTITION. 


Art.  lo.     Reference  as  to  Title  and  as  to  Creditors. 


Hornbeck  therein,  and  also  subject  to  the  inchoate  right  of  dower 
of  his  wife,  the  defendant  Sarah  Hornbeck,  therein;  that  the  de- 
fendant Emzey  Hornbeck  is  entitled  to  the  undivided  one-seventh 
part  of  said  premises,  subject  to  the  dower  interest  of  the  said 
Rachel  Hornbeck  therein,  and  also  subject  to  the  inchoate  right  of 
dower  of  the  defendant  Ellen  Hornbeck  therein;  that  the  defend- 
ant Catherine  J.  Garrison  is  entitled  to  the  undivided  seventh  part 
of  said  premises,  subject  to  the  dower  interest  of  the  said  Rachel 
Hornbeck  therein,  and  subject  to  whatever  right  the  court  may 
determine  that  the  defendant  Jerome  Garrison,  her  husband,  may 
have  therein ;  that  the  defendant  John  H.  Hornbeck  is  entitled  to 
the  undivided  one-seventh  part  of  said  premises,  subject  to  the 
dower  interest  of  the  defendant  Rachel  Hornbeck  therein  and  also 
subject  to  the  inchoate  right  of  dower  of  his  wife,  the  defendant 
Francis  C.  Hornbeck  therein;  that  the  defendant  Alexander  Horn- 
beck is  entitled  to  the  undivided  one-seventh  part  of  said  premises, 
subject  to  the  dower  interest  of  the  said  Rachel  Hornbeck  therein, 
and  also  subject  to  the  inchoate  right  of  dower  of  his  wife,  the 
defendant  Delilah  Hornbeck  therein;  that  the  defendant  Sylvanus 
Hornbeck  is  entitled  to  the  undivided  one-seventh  part  of  said  premi- 
ses, subject  to  the  dower  interest  of  said  Rachel  Hornbeck  therein, 
and  also  subject  to  the  inchoate  right  of  dower  of  his  wife,  the  de- 
fendant Malinda  M.  Hornbeck  therein;  that  the  defendant  Peter 
L.  Hornbeck  is  entitled  to  the  undivided  one-seventh  part  of  said 
premises,  subject  to  the  dower  interest  of  the  said  Rachel  Hornbeck 
therein,  and  also  subject  to  the  inchoate  right  of  dower  of  his  wife, 
the  defendant  Sarah  A.  Hornbeck,  therein;  that  the  defendant 
Thomas  Barringer  and  Simon  Freer  are  each  lessees  of  a  portion 
of  said  premises  and  whose  rights  are  not  affected  by  this  action. 

I  do  further  report  that  the  defendant  Rachel  Hornbeck  has  a 
right  of  dower  in  the  whole  of  said  premises,  that  she  is  of  the  age 
of  sixty-two  years,  and  that  such  dower  interest  should  be  sold  for 
the  reason  that  to  except  such  dower  interest  from  the  sale  would 
seriously  impair  the  saleable  value  of  the  whole  property,  and  I  fur- 
ther find  that  said  Rachel  Hornbeck  is  willing  to  accept  out  of  the 
proceeds  of  such  sale  the  present  value  of  her  dower  interest  therein, 
computed  on  the  principles  of  life  annuities. 

I  do  further  report  that  the  premises  described  in  the  complaint 
are  so  circumstanced  that  an  actual  partition  thereof  cannot  be  made 
without  great  prejudice  to  the  owners  thereof,  and  for  the  reason  that 
there  are  such  a  large  number  of  parties  in  interest  that  a  partition 
would  be  difficult,  that  the  most  valuable  of  the  property  is  farming 
land  with  farm  buildings  thereon,  and  it  could  not  be  so  divided  as 
not  to  greatly  impair  its  value,  and  no  partition  could  be  made  that 
would  not  leave  the  several  seven  shares  differing  greatly  in  value. 
I  am,  therefore,  of  the  opinion  that  a  sale  of  the  whole  of  said  premi- 
ses is  necessary  and  proper. 

I  annex  hereto  the  clerk's  search  and  the  testimony  taken  before 
me. 

OLIVER  P.   CARPENTER, 

Referee. 


PARTITION, 


189 


Art.  10.     Reference  as  to  Title  and  as  to  Creditors. 


Precedent  for  Like  Report  in  Favor  of  Actual  Partition. 

SUPREME  COURT. 


NATHAN  R.   NICKERSON 


agst. 


EMMA  STEVENS  and  Others. 


To  the  Supreme  Court  of  the  State  of  Netv    York  : 

Pursuant  to  an  order  of  this  court,  made  herein  on  the  21st  day 
of  November,  1887,  by  which  it  was  referred  to  me  to  take  proof  of 
the  rights,  shares  and  interests  of  the  several  parties  in  the  prop- 
erty and  of  the  several  matters  set  forth  in  the  complaint,  and  to 
ascertain  and  report  the  rights  and  interest  of  the  several  parties  in 
the  premises,  and  an  abstract  of  the  conveyances  by  which  the  same 
are  held,  and  to  hear  and  decide  all  the  issues  raised  by  the  pleadings 
herein,  and  to  inquire  and  report  whether  the  whole  premises,  or 
any  part  or  separate  parcel  thereof,  is  so  circumstanced  that  actual 
partition  cannot  be  made  and  that  a  sale  of  the  whole  premises,  or 
of  any  lot  or  separate  parcel  thereof,  will  be  necessary  and,  if  neces- 
sary, that  the  reason  why  such  sale  is  rendered  necessary  be  stated, 
and  that  in  case  a  sale  of  said  property  should  be  found  necessary, 
it  was  then  further  ordered  that  it  be  ascertained  and  a  report  made 
whether  any  creditor,  not  a  party  to  the  suit,  have  a  specific  lien  by 
mortgage,  or  otherwise,  upon  the  undivided  share  or  interest  of  any 
of  the  parties,  in  that  portion  of  the  premises  which  it  is  necessary 
to  sell,  and  whether  the  undivided  share  or  interest  of  any  of  the 
parties,  in  the  premises  adjudged  necessary  to  be  sold,  is  subject  to 
a  general  lien  or  incumbrance,  by  judgment  or  otherwise,  and  also 
ascertain  and  report  the  amount  clue  to  any  party  to  the  said  suit 
who  has  either  a  general  or  specific  lien  on  the  premises  to  be  sold 
or  any  part  thereof;  and  it  was  further  ordered,  in  case  a  sale  should 
be  found  necessary,  that  it  be  ascertained  and  a  report  made  of  the 
amount  due  to  any  creditors  not  a  party  who  has  a  lien,  whether 
general  or  specific,  on  any  undivided  share  or  interest  thereon,  and 
who  shall  appear  and  establish  his  claim  on  such  reference. 

I,  the  subscriber,  referee  aforesaid,  do  report: 

First.  Before  proceedings  had  I  took  the  oath  prescribed  by  law, 
which  is  hereto  annexed. 

Second.  Having  been  attended  by  the  attorneys  for  the  several 
parties  who  appeared  in  the  cause,  I  proceeded  to  a  hearing  of  the 
matters  so  referred. 

Third.  On  such  hearing  I  took  proof  of  the  several  matters  set 
forth  in  the  complaint  herein  and  find  that  the  material  facts  alleged 
in  the  complaint  are  true. 

Fourth.  The  following  is  an  abstract  of  the  conveyances  and  instru- 
ments by  which  the  premises  described   in  said  complaint  are  held. 

(Here  insert  abstract.) 


ipO  PARTITION. 


Art.  lo.     Reference  as  to  Title  and  as  to  Creditors. 


Fifth.  The  rights  and  interests  of  the  parties  in  the  premises  are 
as  follows: 

Nathan  R.  Nickerson,  the  plaintiff,  as  grantee  of  George  VV.  Nick- 
erson,  is  entitled  to  one  undivided  one-half  part  thereof. 

The  defendant  Emma  Stevens,  the  wife  of  Nelson  Stevens,  as 
grantee  of  Peter  T.  Stevens,  is  entitled  to  an  undivided  one-half 
part  thereof. 

Sixth.  In  my  opinion  the  premises  described  in  said  complaint  are 
so  circumstanced  that  a  partition  thereof  can  be  had  without  preju- 
dice to  the  owners  thereof,  and  that  a  partition  of  said  premi- 
ses would  be  more  advantageous  to  such  owners  than  a  sale  thereof. 
(State  specifically  reasons  therefor.) 

All  of  which  is  respectfully  submitted. 

Dated  July  24,  1887.  C.   A.   VAN  WAGONER, 

Referee. 

Sub.  2.   Reference  as  to  Creditors.     §§  1561,  1562. 

§  1561.  Reference  to  inquire  as  to  creditors. 

Before  an  interlocutory  judgment  for  the  sale  of  real  property  is  rendered,  in 
an  action  for  partition,  the  court  must,  either  with  or  without  application  by  a 
party,  direct  a  reference,  to  ascertain  whether  there  is  any  creditor,  not  a  party, 
who  has  a  lien  on  the  undivided  share  or  interest  of  any  party.  But  the  court 
may  direct  or  dispense  with  such  a  reference,  in  its  discretion,  where  a  party 
produces  a  search,  certified  by  the  clerk,  or  by  the  clerk  and  register,  as  the  case 
requires,  of  the  county  where  the  property  is  situated  ;  and  it  appears  therefrom, 
and  by  the  affidavits,  if  any,  produced  therewith,  that  there  is  no  such  outstand- 
ing lien. 

§  1562.  [Am'd,  1887.]     Duty  of  referee. 

Where  a  reference  is  directed,  as  prescribed  in  the  last  section,  the  referee 
must  cause  a  notice  to  be  published,  once  in  each  week  for  six  successive  weeks, 
in  such  newspaper  published  in  the  county  wherein  the  place  of  trial  is  desig- 
nated, as  shall  be  designated  by  the  court  directing  said  reference,  and  also  in  a 
newspaper  published  in  each  county  wherein  the  property  is  situated,  requiring 
each  person,  not  a  party  to  the  action,  who,  at  the  date  of  the  order,  had  a  lien 
upon  any  undivided  share  or  interest  in  the  property,  to  appear  before  the  referee, 
at  a  specified  place,  and  on  or  before  a  specified  day,  to  prove  his  lien,  and  the 
true  amount  due  or  to  become  due  to  him  by  reason  thereof.  The  referee  must 
report  to  the  court,  with  all  convenient  speed,  the  name  of  each  creditor,  whose 
lien  is  satisfactorily  proved  before  him,  the  nature  and  extent  of  the  lien,  the 
date  thereof,  and  the  amount  due  or  to  become  due  thereupon. 

Under  the  former  practice  it  was  held  not  to  be  necessary  that 
the  referee  in  these  proceedings  advertise  for  liens;  such  notice  is 
not  necessary  to  be  published  unless  by  advice  of  the  court,  or  it 
is  required  by  some  party  to  the  suit.  Noble  v.  Cromwell,  27  How. 
289;  Gardner  v.  Luke,  12  Wend.  269;  Hall  v.  Partridge,  10  How. 
188;  Heckey  v.  Mitchell,  5  Abb.  451  :  but  see  language  of  §  1562. 
Where  the  order  of  reference  is  granted,  directing  the  referee  to 


PARTITION. 


191 


Art.  10.     Reference  as  to  Title  and  as  to  Creditors. 


ascertain  and  report  the  amount  due  to  any  party  to  the  action, 
who  has  any  general  or  specific  Hen  on  the  premises,  the  referee 
is  authorized  to  take  proof  and  pass  upon  the  vahdity  of  a  mort- 
gage, upon  an  undivided  share  in  the  premises,  although  that 
issue  is  not  raised  by  the  pleadings.  Halstcd  v.  Halstcd,  55  N. 
Y.  442.  If  notice  is  given  to  general  lienors,  they  are  bound  by 
the  decision ;  and  if  they  wish  to  press  their  claim  on  the  proceeds 
of  sale,  must  except  to  the  report.  DiDihani  v.  Minard,  4  Paige, 
441.  Where  the  interest  of  a  defendant  is  sold  under  a  judgment, 
subsequent  to  the  commencement  of  the  action,  the  purchaser 
must  come  in  before  the  referee  and  prove  his  claim,  or  his  inter- 
est will  be  divested  by  a  sale.  Spring  v.  Sanford,  7  Paige,  550. 
An  heir  who  incurs  expense  at  the  request  of  the  others,  for  the 
protection  of  the  estate,  does  not  acquire  a  lien.  Bulcn  v.  Bcrdcll, 
II  Abb.  381.  But  the  rents  received  by  a  co-tenant  are  a  lien 
upon  his  share  in  favor  of  those  entitled  thereto.  Scott  v.  Guernsey, 
48  N.  Y.  106.  A  mortgage  executed  by  one  tenant  in  common, 
pending  suit,  becomes  a  lien  subject  to  the  effect  of  the  /is  pendens. 
Westervclt  v.  Haff,  2  Sandf.  Ch.  98 ;  CJmrck  v.  Chureh,  3  Sandf. 
Ch.  434.  Where,  under  judgment  in  partition,  the  referee  is 
directed  to  pay,  out  of  the  proceeds,  all  taxes,  assessments,  etc., 
which  were  liens  upon  the  premises,  he  is  bound,  before  distribu- 
ting the  fund,  to  pay  off  all  such  liens  to  his  knowledge.  His 
duty  in  this  respect  is  not  modified  or  affected  by  a  provision  in 
the  terms  of  sale,  to  the  effect  that  he  will  allow  all  liens,  pro- 
vided that  the  purchaser,  previous  to  the  conveyance,  produce 
proof  thereof,  with  vouchers  showing  payment.  It  seems  effect 
will  be  given  to  general  usage,  permitting  the  referee  to  await  the 
production,  by  the  purchaser,  of  the  proof  of  liens,  by  excusing 
the  referee  from  making  examination  to  discover  liens ;  but  if  he 
is  aware  of  the  existence  of  the  lien,  he  is  liable  to  the  purchaser. 
Wiseman  v.  Wingrove,  85  N.  Y.  353.  See  §  1545  for  other  decis- 
ions with  regard  to  powers  and  duties  of  referee. 

It  is  much  the  simpler  and  easier  practice  to  make  all  lienors 
parties  and  produce  a  certified  search  showing  that  fact  so  as  to 
dispense  with  the  delay  and  expense  consequent  upon  publication. 
In  case  it  does  not  appear  on  the  application  for  interlocutory 
judgment  that  no  such  liens  exist,  an  order  of  reference  will  be 
made,  reciting  that  fact  as  the  basis  for  the  order,  and  the  referee 
must  then  advertise. 


192 


PARTITION. 


Art.  10.     Reference  as  to  Title  and  as  to  Creditors. 


Publication  under  section  1562  is  only  constructive  notice,  and 
to  give  it  effect  as  such,  it  must  be  in  strict  compliance  with  the 
statutes.  Such  notice  cannot  be  given  after  the  judgment  has 
been  rendered.      O' Grady  v.  O' Grady,  55  Hun,  40. 

Where  the  property  is  situated  in  only  one  county,  publication 
is  not  required  in  two  newspapers.  Connor  v.  Connor,  36  St. 
Rep.  823. 


Precedent  for  Order  of  Reference  to  Inquire  as  to  Creditors. 

At  a  Special  Term  held  in  and  for  the  Third  Judicial  District  at  the 
court  house  in  the  citv  of  Kingston,  on  the  first  day  of  Decem- 
ber, 1887. 

Present. —  Hon.  Alton  B.  Parker,  yustice. 


FREDERICK  B.   HOPPER 

agst. 

GEORGE  M.  BASTEN,  etc.,  MARIA  C, 
HIS  WIFE,  SAMUEL  M.  BASTEN  and 
Wife,  and  Others. 


An  application  having  been  made  herein  by  the  plaintiff,  for  an 
interlocutory  judgment  for  the  sale  of  the  real  property  described  in 
the  complaint  in  partition,  and  it  appearing  from  the  papers  pre- 
sented upon  such  hearing  and  from  the  affidavit  of  V.  B.  Van  Wag- 
onen,  Esq.,  attorney  for  the  plaintiff,  that  no  search  certified  as 
required  by  §  1561,  is  presented,  and  there  being  no  affidavits  show- 
ing that  there  is  no  outstanding  lien. 

Now,  On  motion  of  V.  E.  Van  Wagonen,  attorney  for  plaintiff, 
and  pursuant  to  provisions  of  §  1561,  Alvah  S.  Newcomb,  Esq.,  of 
Kingston,  attorney  and  counsellor  at  law,  is  appointed  a  referee  to 
ascertain  whether  there  is  any  creditor  not  a  party  to  this  action 
who  has  a  lien  on  the  undivided  share  or  interest  of  any  party 
thereto,  and  such  referee  is  directed  to  proceed  according  to  the 
law  and  practice  in  such  case  made  and  provided,  and  report  to  the 
court  with  all  convenient  speed  the  name  of  each  creditor  whose 
lien  is  satisfactorily  proved  before  him,  the  nature  and  extent  of  the 
lien,  the  date  thereof  and  the  amount  due  or  to  become  due  there- 
upon. 

ALTON  B.   PARKER, 

J.  S.  C. 


PARTITION.  193 


Art.  10.      Reference  as  to  Title  and  as  to  Creditors. 


Precedent  for  Notice  to  Creditors  to  Present  Claims. 

SUPREME  COURT. 


FREDERICK   B.   HOPPER 

agst. 

GEORGE  M.  HASTEN,  etc.,  MARIA  C, 
HIS  Wife,  SAMUEL  M.  HASTEN  and 
Wife,  and  Others. 


The  undersigned,  duly  appointed  referee  in  the  above  action,  by 
an  order  of  this  court,  made  herein  on  the  9th  day  of  December, 
1887,  hereby  requires  each  and  every  person,  not  a  party  to  this 
action,  who,  at  the  date  hereof,  has  a  lien  upon  any  undivided  share 
or  interest  in  the  property,  hereinafter  described,  to  appear  before 
the  undersigned,  on  or  before  the  loth  day  of  February,  1888,  at  his 
office  in  the  surrogate's  building,  in  the  city  of  Kingston,  county  of 
Ulster,  to  prove  their  said  liens  and  the  true  amount  due  or  to 
become  due  by  reason  thereof;  and  to  specify  the  nature  of  such 
incumbrance  and  the  dates  thereof  respectively.  The  premises  are 
described  in  the  complaint  in  the  above  action  as  follows:  First.  All 
that  certain  farm  of  about  twenty-eight  acres  with  the  build- 
ings thereon,  situate  in  the  town  of  Marbletown,  said  county, 
and  bounded  as  follows:  South,  by  the  Coxing  road;  west,  by  lands 
of  Henry  Kirnel;  north,  by  lands  of  James  Gillespie  and  William 
Sheeley,  and  east,  by  lands  of  William  Sheeley.  Second.  All  that 
lot  of  improved  land  in  said  town  of  Marbletown,  containing  about 
thirteen  acres,  and  bounded  as  follows:  West,  by  said  Coxing  road; 
south  and  east,  by  lands  of  Benjamin  Krom,  and  north  by  lands  of 
Joseph  Chichester.  Third.  All  that  wood  lot  in  said  town  of  Mar- 
bletown, containing  about  eleven  acres,  and  bounded  as  follows: 
South,  by  lands  of  Mary  E.  Schoonmaker;  east,  by  lands  of  Peter 
Snyder;  north,  by  lands  of  James  Gillespie,  and  west  by  lands  of 
Dinah  Bevier. 

Dated  December  9,  1887.  ALVAH  S.   NEWCOMB, 

Referee 

V.  B.   VAN  WAGONEN, 

Attorney  for  plaintiff. 

L.  B.   VAN  GAASBEEK, 

Attorney  for  some  of  the  defendants. 

JOHN  J.  LINSON, 

Attorney  for  some  of  the  defendants. 

[Special  Actions  —  13.] 


194  PARTITION. 


Art.  II.     Interlocutory  Judgment. 


ARTICLE    XI. 

Interlocutory  Judgment.    §§  1546,  1563,  1572,  1573,  1574, 

1575- 

Sub.  I.  Judgment  for  sale  or  for  actual  partition.     §  1546. 

2.  Special  provisions  IN  JUDGMENT.     §§  1563,  1572,  1573,  1574,  1575. 

Sub.  I.  Judgment  for  Sale  or  for  Actual  Partition.     §  1546. 
§  1546.  Interlocutory  judgment. 

The  interlocutory  judgment  must  declare  what  is  the  right,  share,  or  interest 
of  each  party  in  the  property,  as  far  as  the  same  has  been  ascertained,  and  must 
determine  the  rights  of  the  parties  therein.  Where  it  is  found,  by  the  verdict, 
report,  or  decision,  or  where  it  appears  to  the  court,  upon  an  application  for 
judgment  in  favor  of  the  plaintiff,  that  the  property,  or  any  part  thereof,  is  so 
circumstanced  that  a  partition  thereof  cannot  be  made  without  great  prejudice 
to  the  owners,  the  interlocutory  judgment,  except  as  otherwise  expressly  pre- 
scribed in  this  article,  must  direct  that  the  property,  or  the  part  thereof  which  is 
so  circumstanced,  be  sold  at  public  auction.  Otherwise,  an  interlocutory  judg- 
ment in  favor  of  the  plaintiff,  must  direct  that  partition  be  made  between  the 
parties,  according  to  their  respective  rights,  shares,  and  interests. 

A  judgment  in  partition,  which  directs  a  reference  for  sale, 
inquiry  for  computation  and  for  accounting,  and  provides  for  dis- 
tribution, is  interlocutory  and  not  final.  Mingay  v.  Lackey,  142 
N.  Y.  449,  60  St.  Rep.  98,  afifirming  74  Hun,  89;  57  St.  Rep. 
270,  26  Supp.  161. 

The  judgment  must  set  forth  the  estate  of  each  known  owner, 
or  of  the  defendants,  or  some  of  them  collectively,  when  their 
rights  between  each  other  are  disputed.  Phelps  v.  Gree?t,  3  Johns. 
Cas.  302.  It  may  state  that  certain  definite  parts  belong  to  own- 
ers who  are  unknown.  Hyatt  v.  Pugsley,  23  Barb.  285.  In  decid- 
ing whether  a  sale  is  necessary  in  a  partition  suit,  the  true  question 
for  the  consideration  of  the  master  is,  whether  the  aggregate  value 
of  the  several  parcels  into  which  the  whole  premises  must  be 
divided  will,  when  distributed  among  the  different  parties  in 
severalty,  be  materially  less  than  the  value  of  the  same  property 
if  owned  by  one  person.  Clason  v.  Clason,  6  Paige,  541.  The 
rule  that  the  practicability  of  making  an  actual  partition  is  to  be 
determined  from  the  facts  and  circumstances,  applied,  denying 
such  partition  and  directing  a  sale  of  a  farm  held  in  undivided 
thirds  where  there  was  but  one  set  of  buildings,  and  the  part 
owners  had  severally  mortgaged  their  undivided  shares.  Odell  v. 
Odell,  19  Week.  Dig.  13.      The  words  "  great  prejudice,"  as  used 


PARTITION.  195 


Art.  II.     Interlocutory  Judgment. 


in  the  statutes  in  reference  to  partition,  will  not  justify  a  decree 
of  sale  of  property  held  in  common,  where  the  aggregate  amount 
of  benefits  from  a  sale  to  the  parties,  instead  of  actual  partition 
of  the  premises,  will  be  small  in  reference  to  the  value  of  the  prop- 
erty with  reference  to  which  a  partition  is  sought.     Smith  v.  Smith, 
10  Paige,  470.      The  court  determines  the  necessity  for  the  sale 
upon  the   report  of  the   referee.     Austin  v.  Ahearne,  61   N.  Y.  6. 
A  sale  of  the  premises   should  not  be  ordered   where    infants  or 
a  trustee  without  power  to  purchase  are  parties  entitled,  unless  it 
appears  that  actual  partition,  with  or  without  compensation,  can- 
not be  made.     Where  there  are  several  parcels,  impossibility  of 
dividing  one  of  them  is  not  a  reason  for  a  sale.      Walker  v.  Walker, 
3  Abb.  N.  C.  12.      The  couit  entered  an  interlocutory  judgment, 
stating  certain  facts  and  conclusions  of  law,  and  ordering  a  refer- 
ence as  to  interests,  and  to  take  an  account  of  the  rents  received 
by  a  defendant,  reserving  all  questions  of  costs  till  the  coming  in 
of  the  report.     A  report  was  made,  after  which  leave  was  given 
to  file  a  supplemental  answer,  and  a  new  reference  was  held,  on 
the  coming  in  of  which  report  a  trial  was  had  and  judgment  was 
entered  without  findings.     Held,  the  findings  first  made  were  suf^- 
cient.      Offinger  v.  DcWolf,  43  Super.  Ct.  144.      There  may  be  an 
actual  partition  between  all  the  parties  plaintiff  on  one  side  and  all 
the  parties  defendant   on  the  other.      Walker  v.  Walker,  3  Abb. 
N.  C.  12.     The  court  is  not  restricted  to  a  partition  of  all  the  lands, 
or  to  a  sale  of  the  whole ;  and,  therefore,  where  the  interests  of  the 
parties  require  it,  part  of  the  lands  held  in  common  may  be  divided 
and    part    may    be    sold.      See   section    1547.      Haywood  v.  Jud- 
son,  4  Barb.  228 ;    Van  Orman  v.  Phelps,  9  Barb.  500.     Where  the 
proceedings  are  instituted  in  behalf  of  infants,  neither  partition 
nor  sale  will  be  ordered  unless  the  interests  of  the  infants  require 
it.     Lansing  V.  Gulick,  26  How.  250.      It  is  a  matter  of  discretion 
whether  to  decree  a  sale  or  an  actual  partition  ;  and,  unless  clearly 
erroneous,  such  decision  will  not  be  reviewed   on  appeal.      Scott 
V.  Guernsey,  48  N.  Y.  106.     The  court  will  adjust  equities  between 
the  parties  arising  out  of  the  expenditure  of  money  by  one  of 
them  for  the  benefit  of  the  property ;  an  account  will  be  directed 
and  compensation  made,  or  the  person  will  be  assigned  that  part 
of  the   property  on  which   the   improvements  have  been  made. 
Town  V.  Needham,   3   Paige,  545  ;  Prentice  v.   Janssen,   79  N.  Y. 
478;  Green  V.  Putnam,  i  Barb.  500;  Conklin  v.  Conklin,  3  Sandf. 


196  PARTITION. 


Art.  II.     Interlocutory  Judgment. 


Ch.  64;  Haywood  \.  Judson,  4  Barb.  228;  Teat  v.  Woodworth  3 
Paige,  470;  Matter  of  Heller,  3  Paige,  199. 

In  an  action  of  partition,  where  one  of  the  parties  is  the  undis- 
puted owner  of  two-thirds  of  the  property  to  be  divided,  while 
the  remaining  third  is  in  dispute  among  other  parties,  the  court  in 
the  interlocutory  judgment  will  order  the  sale  of  the  property  in 
one  parcel,  and  give  directions  that  one-third  of  the  proceeds  shall 
be  brought  into  court  to  await  the  result  of  the  controversy  over 
its  ownership,  although,  if  there  had  been  no  such  controversy, 
the  property  would  have  been  actually  partitioned.  Fleming  v. 
BurnJiam,  18  Week.  Dig.  559.  The  rules  governing  partition 
are  the  same  whether  there  is  a  sale  or  an  actual  partition.  War- 
field  \.  Crane,  4  Abb.  Ct.  of  App.  Dec.  525. 

There  is  but  one  case  in  which  the  court  has  power  in  an  action 
for  partition  to  order  a  sale,  and  that  is  where  partition  cannot 
be  made  without  great  prejudice  to  the  owners.  Otherwise  actual 
partitio     must  be  made.      Stephenson  v.  Cotter,  23  St.  Rep.  74. 

But  it  is  held  in  Brooks  v.  Davey,  109  N.  Y.  495,  that  it  is  within 
the  discretion  of  the  court  to  direct  a  sale  of  the  premises;  and 
where  a  sale  is  ordered  pursuant  to  this  section,  the  title  of  the 
purchaser  is  to  be  deemed  good,  not  only  against  the  parties  to  this 
action,  and  their  representatives,  but  against  any  one  claiming 
through  or  under  such  party. 

And  it  is  held  that  a  direction  for  a  sale  in  an  action  brought 
by  a  remainderman  not  in  possession,  although  forbidden  by  § 
1533,  is  not  void  for  want  of  jurisdiction.  Prior  v.  Prior,  15  Civ. 
Pro.  R.  436;  S.  C.  18  St.  Rep.  566,  2  N.  Y.  Supp.  523,  49  Hun, 
502.  And  whether  a  sale  shall  be  ordered  before  any  attempt  at 
actual  partition  has  been  made,  is  a  question  to  be  determined 
from  the  facts  and  circumstances  of  the  case.  C dell  v.  O'dell,  19 
Weed.   Dig.  13. 

A  judgment  of  sale  will  not  be  interfered  with  where  the  value 
of  the  property  consists  in  its  adaptability  for  purposes  of  busi- 
ness and  is  more  valuable  to  sell  as  a  whole  than  to  divide  and 
sell  a  portion  for  equality  of  partition.  David  v.  David,  9  N.  Y. 
Supp.  256;  S.  C.  31  St.  Rep.  116. 

Where  the  defendant  in  partition  claimed  the  right  to  a  convey- 
ance under  a  parol  executory  contract  of  sale,  on  which  part  of 
the  consideration  has  been  paid,  the  court  may  decree  their  right 
to  such  conveyance ;  and  on  the  failure  of  their  compliance  with 


PARTITION.  197 


Art.  II.     Interlocutory  Judgment. 


the  terms,  decree  partition  as  prayed  in  the  complaint.      Grant  v. 
Keator,  117  N.  Y.  369. 

An  actual  partition  was  sustained  between  devisee  of  an  undi- 
vided one-half  of  property  and  the  life  tenant  and  remainderman 
of  the  other  half,  although  the  will  directed  the  latter  half  to  be 
kept  intact  during  the  life  tenancy,  when  the  remaindermen  all 
consented.  Knevals  v.  Henry,  10  N.  Y.  Supp.  676;  S.  C.  32  St. 
Rep.  964. 

Precedent  for  Interlocutory  Judgment  of  Sale. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  City  Hall  in  the  City  of  Albany,  on  the  29th  day  of 
March,  1892. 

Present  —  Hon.  Samuel  EcTwards,  Justice. 
SUPREME  COURT  — Albany  County. 


JOHN  W.  McHARG  and  HARRIETTE  D. 
McHARG,  HIS  Wife,  Plaintiffs, 

agsf. 

RUFUS  K.  McHARG  and  HARRIET  S. 
McHARG.  his  Wife,  and  Others,  De- 
fendants. 


On  reading  and  filing  the  report  of  William  Bayard  Van  Rensse- 
laer, the  referee  appointed  in  the  above-entitled  action  by  an  order 
of  this  court  made  and  entered  on  the  29th  day  of  December,  1891; 
and  on  reading  and  filing  proof  of  due  service  of  notice  of  this 
motion  upon  Hon.  Simon  W.  Rosendale,  Attorney-General,  attorney 
for  the  defendant  the  People  of  the  State  of  New  York;  Frank  W. 
Stevens,  Esq.,  attorney  for  Robert  N.  Marvin  and  Elizabeth  Marvin 
and  for  Robert  N.  Marvin,  guardian  ad  litem  for  Isabella  Marvin 
and  Maud  Marvin;  John  J.  Kinney,  Esq.,  attorney  for  Evelyn  N. 
Post  and  Daniel  H.  Post,  her  husband,  and  for  John  J.  Kinney  and 
Frederick  A.  Bentley,  as  executors  under  the  last  will  and  testament 
of  Robert  Newland,  deceased;  and  James  Fenimore  Cooper,  Esq., 
guardian  ad  litein  for  Katharine  F.  Clarke;  and  after  due  delibera- 
tion having  been  had.  Now,  on  motion  of  Marcus  T.  Hun,  Esq., 
attorney  for  the  plaintiffs,  it  is 

Ordered,  adjudged  and  decreed  that  the  respective  rights,  shares 
and  interests  of  the  parties  to  this  suit  in  the  property  mentioned 
and  described  in  the  amended  complaint  herein  are,  as  follows, 
to-wit: 

That  the  plaintiff  John  W.  McHarg  is  seized  of  and  entitled  in 
fee  simple  absolute  to  two  undivided  twenty-thirds  thereof,  subject 
to  the  inchoate  right  of  dower  therein  of  his  wife,  the  plaintiff,  Har- 


iqS  partition. 


Art.  II.     Interlocutory  Judgment. 


riette  D.  McHarg.  That  the  said  John  W.  McHarg  is  forty-eight 
years  of  age,  and  that  the  said  Harriette  D.  McHarg  is  forty  years 
of  age.     (Recite  other  like  interests  in  the  same  manner.) 

That  the  defendant  Richard  P.  Marvin,  Jr.,  is  seized  of  and 
entitled  in  fee  simple  absolute  to  one  undivided  twenty-third 
thereof;  and  that  the  said  Richard  P.  Marvin,  Jr.,  is  unmarried. 

That  the  defendant  John  M.  Wood,  is  seized  of  and  entitled  in 
fee  simple  absolute  to  one  undivided  twenty-third  thereof;  and  that 
the  said  John  M.  Wood  is  unmarried. 

That  the  defendant  Sophia  K.  Porter  is  seized  of  and  entitled  in 
fee  simple  absolute  to  one  undivided  twenty-third  thereof;  and  that 
the  said  Sophia  K.  Porter  is  married  to  the  defendant  Horace 
Porter.  (Recite  other  like  interests  in  same  manner.) 

That  the  defendant  Katharine  F.  Clarke  is  seized  of  and  entitled 
in  fee  simple  absolute  to  one  undivided  twenty-third  thereof;  and 
that  the  said  Katharine  F.  Clarke  is  a  minor  under  the  age  of 
twenty-one  years  and  is  unmarried. 

(Recite  interests  of  other  like  defendants  who  are  minors  in  the  same 

manner.) 
That   the  defendant  Mary  E.  Goodrich  is  seized  of  and  entitled 
in  fee  simple  absolute  to  one  undivided  twenty-third  thereof;  and 
that  the  said  Mary  E.  Goodrich  is  a  widow. 

That  the  defendant  Evelyn  N.  Post  is  seized  of  and  entitled  in 
fee  simple  absolute  to  one  undivided  twenty-third  thereof,  subject, 
however,  to  the  payment  of  the  debts  of  her  father,  Robert  Newland, 
deceased;  and  that  the  proceeds  of  any  sale  of  said  real  estate 
should  be  paid  into  the  Surrogate's  Court  to  be  there  distributed  by 
the  executors  of  the  said  Robert  Newland,  who  are  parties  to  this 
suit.  That  the  said  Evelyn  N.  Post  is  married  to  the  defendant 
Daniel  H.  Post. 

That  the  defendant  William  Donaldson,  a  party  defendant  in  this 
action,  was  born  a  citizen  of  the  United  States  and  never  renounced 
his  allegiance  to  said  country,  and  that  the  defendant,  the  People  of 
the  State  of  New  York  have  not  nor  have  they  ever  had  any  right, 
title  or  interest  of,  in  and  to  the  premises  hereinafter  described. 

And  it  having  been  found  by  said  report  that  the  said  property  is 
so  circumstanced  that  a  partition  thereof  cannot  be  made  without 
great  prejudice  to  the  owners,  it  is 

Ordered,  adjudged  and  decreed  that  the  said  property  mentioned 
and  described  in  the  amended  complaint  herein,  to-wit:  (Insert 
description.)  Together  with  the  common  right  of  drainage  and 
water,  as  the  same  are  now  enjoyed  by  said  premises. 

And  all  the  estate,  right,  title  and  interest  of  the  parties  to  the 
suit  therein,  whether  present  or  future,  vested  or  contingent,  of 
dower,  curtesy  or  otherwise,  and  the  rights  to  which  any  other  per- 
son might  hereafter  become  entitled  in  said  premises,  be  sold  at 
public  auction  in  the  county  of  Albany  where  said  premises  are  situ- 
ated, by  or  under  the  direction  of  William  Bayard  Van  Rensselaer, 
Esq.,  who  is  hereby  appointed  referee  for  the  purpose  of  making 
such  sale. 

That  the  said  referee  give  notice  of  such  sale  according  to  the 


PARTITION. 


199 


Art.  II.     Interlocutory  Judgment. 


course  and  practice  of  this  court.  That  said  sale  be  made  for  cash, 
and  that  the  plaintiffs  or  any  of  the  parties  to  this  action  may 
become  a  purchaser  or  purchasers  thereof. 

It  is  further  ordered,  adjudged  and  decreed  that  the  said  referee, 
immediately  after  completing  such  sale,  file  with  the  clerk  of  this 
court  his  report  thereof  under  oath,  containing  a  description  of  the 
property  sold,  the  name  of  the  purchaser  thereof,  and  the  price  at 
which  it  was  sold. 

A.  C.   REQUA, 

Clerk. 

Precedent  for  interlocutory  judgment  for  actual  partition  and 
appointment  of  commissioners  will  be  found  under  Article  XVI, 
Sub.  2,  §  1549,  etc. 

Sub,    2.   Special  Provisions  in  Judgment.   •  §§   1563,    1572-1575. 

^  1563.  Money  to  be  paid  into  court. 

If  it  appears  by  the  pleadings,  or  by  the  evidence  in  the  action,  or  by  the  re- 
port, that  there  was,  at  the  date  of  the  order,  any  existing  lien  upon  the  share 
or  interest  of  a  party  in  the  property,  the  interlocutory  judgment,  directing  the 
sale,  must  also  direct  the  officer  making  it  to  pay  into  court  the  portion  of  the 
money,  arising  from  the  sale  of  the  share  or  interest  of  that  party,  after  deduct- 
ing the  portion  of  the  costs  and  expenses  for  which  it  is  liable. 

t^  1572.  Unknown  owners. 

If  a  person,  entitled  to  an  estate  or  interest  in  the  property  sold,  is  made  a 
party  as  an  unknown  defendant,  the  court  must  provide  for  the  protection  of  his 
rights,  as  far  as  may  be,  as  if  ha  was  known  and  had  appeared. 

§  1573.  Sale;  terms  of  credit  thereupon. 

The  court  must,  in  the  interlocutory  judgment  for  a  sale,  direct  the  terms  of 
credit  which  may  be  allowed  for  any  portion  of  the  purchase-money,  of  which 
it  thinks  proper  to  direct  the  investment,  and  for  any  portion  of  the  purchase- 
money,  which  is  required  to  be  invested  for  the  benefit  of  a  person,  as  prescribed 
in  this  article. 

§  1574.  Credit;  how  secured. 

The  portion  of  the  purchase-money,  for  which  credit  is  so  allowed,  must 
always  ue  secured  at  interest,  by  a  mortgage  upon  the  property  sold,  with  a 
bond  of  the  purchaser;  and  by  such  additional  security,  if  any,  as  the  court 
prescribes. 

§  1575.  Separate  securities. 

The  officer  making  the  sale  may  take  separate  mortgages  and  other  securities 
in  the  name  of  the  county  treasurer  of  the  county  in  which  the  property  is 
situated,  for  such  convenient  portions  of  the  purchase-money,  as  are  directed 
by  the  court  to  be  invested;  and  in  the  name  of  the  owner,  for  the  share  of  any 
known  owner  of  full  age,  who  desires  to  have  it  invested. 


1 


200 


PARTITION. 


Art.  II.     Interlocutory  Judgment. 


I 


Precedent  for  Interlocutory  Judgment,  with  Special 

Provisions. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  county  court  house  at  White  Plains,  in  the  county  of 
Westchester,  State  of  New  York,  on  the  8th  day  of  April,  1893. 

Present  —  Hon.  J.  O.  Dykman,  Justice. 

ELWOOD  B.  MINGAY,  Plaintiff 
agst. 

LILY  MINGAY,  wife  of  said  ELWOOD  B.  L    1^2  N.  Y.  453. 
MINGAY;  JAMES    B.   MINGAY,   MARY 
ESTELLE    LACKEY     and     EDWIN    D. 
LACKEY,  HER  Husband,  Defendants. 

This  aciton  having  been  brought  on  for  trial  upon  the  summons 
and  complaint  herein  and  the  answers  of  the  defendants  Mary 
Estelle  Lackey  and  Edwin  D.  Lackey,  and  upon  due  proof  of  the 
service  of  said  summons  and  complaint  upon  the  defendants  Lily 
Mingay  and  James  B.  Mingay,  personally,  within  the  State  of  New 
York,  and  due  proof  that  said  defendants  Lily  Mingay  and  James 
B.  Mingay  have  not  served  any  answer  or  demurrer  to  the  complaint 
herein,  and  that  their  time  to  answer  or  demur  has  expired,  and  that 
they  have  not  appeared  herein,  and  upon  the  verdict  of  the  jury 
herein  upon  the  issues  raised  by  the  complaint,  and  the  answer  of 
the  defendant  Mary  Estelle  Lackey  in  favor  of  the  plaintiff,  Elwood 
B.  Mingay,  and  against  the  said  defendant  Mary  Estelle  Lackey, 
rendered  at  a  Surrogate  Court  for  Westchester  county,  held  at  the 
court  house  in  the  town  of  White  Plains,  on  the  17th  day  of  March, 
1893,  and  findings  of  fact  and  conclusions  of  law  having  been  signed 
and  filed,  after  hearing  Sidney  H.  Stuart,  attorney  for  plaintiff,  on 
behalf  of  said  plaintiff,  and  Messrs.  Feitner  &:  Beck,  attorneys  for 
the  defendants  Mary  Estelle  Lackey  and  Edwin  D.  Lackey,  on 
behalf  of  said  defendants. 

Now,  on  motion  of  Sidney  H.  Stuart,  attorney  for  the  plaintiff, 
Elwood  B.  Mingay,  it  is  adjudged  and  decreed  that  the  rights, 
titles  and  interests  of  the  parties  to  this  action  in  and  to  the  premi- 
ses mentioned  in  the  complaint  and  described  as  follows,  to  wit: 
(insert  description),  are  as  follows: 

The  plaintiff  Elwood  B.  Mingay,  and  the  defendant  Mary  Estelle 
Lackey  are  entitled  to  and  hold,  as  tenants  in  common,  each  the  one 
undivided  half  part  of  the  above  described  premises,  subject,  how- 
ever, to  the  tenancy  by  the  curtesy  of  the  defendant  James  B.  Min- 
gay in  the  whole  of  said  premises,  which  tenancy  by  the  curtesy  and 
all  his  right,  title  and  interest  therein  and  in  and  to  said  premises 
the  said  defendant  James  B.  Mingay  duly  assigned  and  conveyed 
before  the  commencement  of  this  action  to  the  plaintiff,  Elwood  B. 
Mingay,  who  is  the  owner  thereof  and  entitled  to  the  same. 


PARTITION.  20  [ 


Art.  II.     Interlocutory  Judgment. 


The  defendant  Lily  Mingay  has  an  inchoate  right  of  dower  in  the 
share  or  portion  of  her  husband,  the  plaintiff,  Elwood  B.  Mingay, 
and  all  of  said  premises. 

And  it  appearing,  by  the  testimony  herein,  that  an  actual  parti- 
tion of  said  premises  mentioned  in  the  complaint  and  hereinbefore 
described,  cannot  be  had  without  great  prejudice  to  the  owners 
thereof,  and  that  a  sale  of  the  whole  of  said  first  described  premises 
situate  in  the  town  of  Cortland  and  county  of  Westchester,  as  one 
parcel  of  land,  and  of  the  whole  of  said  second  above  described 
premises  situate  in  the  city  and  county  of  New  York,  as  one  parcel 
of  land,  and  the  sale  of  the  whole  of  said  above  described  premises 
situate  in  the  city  of  Brooklyn  and  county  of  Kings,  as  one  parcel 
of  land,  is  necessary  to  the  interest  of  all  parties,  it  is  further 
adjudged  and  decreed,  that  all  and  singular  the  premises  mentioned 
in  the  complaint,  and  hereinbefore  particularly  described,  together 
with  all  and  singular  the  hereditaments  and  appurtenances  thereto 
belonging  or  in  any  wise  appertaining,  be  sold,  the  first  above-de- 
scribed premises  situate  in  the  town  of  Cortland  and  county  of  West- 
chester, as  one  parcel  of  land,  the  second  above-described  premises 
situate  in  the  city  and  county  of  New  York,  as  one  parcel  of  land, 
and  the  third  above-described  premises  situate  in  the  city  of  Brook- 
lyn and  county  of  Kings,  as  one  parcel  of  land,  at  the  New  York 
Real  Estate  Sales  Rooms,  No.  iii  Broadway,  in  the  city  of  New 
York,  by  and  under  the  direction  of  James  H.  Moran,  Esq.,  coun- 
sellor-at-law,  who  is  hereby  appointed  referee  for  that  purpose;  that 
the  said  referee  give  notice  of  the  time  and  place  of  said  sale  by  pub- 
lishing same  and  in  such  other  manner  as  is  required  by  law,  and 
the  rules  and  practice  of  this  court,  and  that  any  of  the  parties  to 
this  action  may  become  the  purchaser  or  purchasers,  at  such  sales, 
and  that  such  sales  be  for  cash,  and  that  said  third  above-described 
premises  situate  in  the  city  of  Brooklyn,  county  of  Kings,  be  sold 
subject  to  the  mortgage  for  $370,  now  on  said  premises,  and  the 
accrued  interest. 

And  it  is  further  adjudged  and  decreed  that  the  said  referee,  out 
of  the  proceeds  of  said  sale,  shall  retain  his  fees  and  disbursements 
to  which  he  is  entitled  on  the  sale  to  be  made  herein,  and  pay  all 
deductions  and  assessments  which  may  be  a  lien  upon  said  premises 
at  the  time  of  said  sale;  that  he  next  pay  to  the  plaintiff  or  to  Sidney 
H.  Stuart,  his  attorney,  the  amount  of  his  costs  and  disbursements 
to  be  taxed  by  the  clerk  of  this  court,  and  also  the  sum  to  be  fixed 
on  the  sale  of  the  premises  as  and  for  an  additional  allowance,  and 
that  he  next  pay  to  the  defendant  Mary  Estelle  Lackey  or  to  Messrs. 
Feitner  &  Beck,  her  attorneys,  the  amount  of  her  said  costs  and  dis- 
bursements to  be  taxed  by  said  clerk,  and  the  amount  to  be  fixed 
upon  the  sale  of  the  property  as  her  additional  allowance. 

And  it  appearing  to  the  court  that  the  defendant  James  B.  Mingay 
has  a  tenancy  by  the  curtesy  in  the  whole  of  said  premises  which  he 
has  assigned  and  conveyed  to  the  plaintiff  Elwood  B.  Mingay,  it  is 
further  adjudged  and  decreed  that  the  tenancy  by  the  curtesy  be 
included  in  said  sale,  and  the  purchasers  of  said  premises,  their  heirs 
and  assigns,  shall  hold  the  said  property  free  and  discharged  of  any 


202  PARTITION. 


Art.  II.      Interlocutory  Judgment. 


claim  by  virtue  thereof,  and  that  the  said  referee  shall  next  pay  over 
to  the  said  plaintiff  Elwood  B.  Mingay  a  gross  sum  in  satisfaction  of 
the  said  tenancy  by  the  curtesy  to  be  fixed  by  the  said  referee 
according  to  the  principles  of  law  applicable  to  annuities. 

And  it  appearing  to  the  court  that  the  defendant  Lily  Mingay, 
wife  of  the  plaintiff  Elwood  B.  Mingay,  has  an  inchoate  right  of 
dower  in  the  share  of  her  husband,  said  Elwood  B.  Mingay,  in  the 
whole  of  said  premises,  it  is  further  adjudged  and  decreed,  that  the 
said  right  of  dower  be  included  in  the  said  sale,  and  the  purchasers 
of  the  said  premises,  their  heirs  and  assigns,  shall  hold  the  said 
property  free  and  discharged  of  any  claim  by  virtue  of  the  said 
right,  and  the  said  defendant  Lily  Mingay  is  entitled  to  receive 
from  the  share  or  proportion  of  her  said  husband  in  the  proceeds 
of  sale,  at  her  election,  to  be  signified  by  request  and  consent  there- 
for, and  delivering  a  certified  copy  to  said  referee  before  the  report 
of  a  sale,  a  gross  sum  in  satisfaction  of  the  said  right  of  dower  to  be 
fixed  by  the  said  referee,  according  to  the  principles  of  law  appli- 
cable to  annuities  or  in  default  of  an  election  being  so  signified  by 
her  to  have  one-third  of  the  share  or  proportion  of  her  said  husband 
in  the  proceeds  of  sale  paid  into  court,  according  to  law  and  the 
rules  and  practice  of  the  court  for  the  purpose  of  being  invested  for 
her  benefit  according  to  law. 

And  it  is  further  adjudged  and  decreed,  that  said  referee  pay  to 
the  plaintiff  or  to  Sidney  H.  Stuart,  his  attorney,  out  of  the  proceeds 
of  sale,  the  costs  and  disbursements  of  the  said  jury  trial  of  the 
issues  raised  ty  the  complaint  and  the  answer  of  the  said  defendant 
Mary  Estelle  Lackey,  said  costs  and  disbursements  to  be  taxed  by 
the  clerk  of  this  court. 

And  it  is  further  adjudged  and  decreed,  that  the  said  referee  pay 
over  to  the  plaintiff  Elwood  B.  Mingay  and  the  defendant  Mary 
Estelle  Lackey,  respectively,  the  share  of  the  proceeds  of  sale  as 
hereinbefore  adjudged  and  decreed,  deducting  from  each  of  them 
the  portion  of  the  costs,  allowances  and  expenses  for  which  it  is 
herein  adjudged  to  be  liable,  and  the  tenancy  by  the  curtesy  of  the 
defendant  James  B.  Mingay  as  herein  adjudged,  and  from  the  share 
of  the  plaintiff  Elwood  B.  Mingay,  the  dower  right  of  the  defendant 
Lily  Mingay. 

And  it  is  further  adjudged  and  decreed,  that  the  said  referee  take 
receipts  for  all  payments  to  be  made  by  him  as  aforesaid,  and  file 
them  with  his  report  to  be  made  of  his  proceeds,  subsequent  to  the 
confirmation  of  his  report  of  sale. 

And  it  is  further  adjudged  and  decreed  that  the  plaintiff  Elwood 
B.  Mingay  and  the  defendant  Mary  Estelle  Lackey  make,  execute 
and  deliver  to  the  purchaser  or  purchasers,  on  the  sale  of  said  premi- 
ses, if  thereunto  requested,  conveyances  of  all  their  right,  title  and 
interest  in  and  to  the  said  premises  upon  full  compliance  by  said 
purchaser  or  purchasers,  with  the  terms  and  conditions  of  said  sale. 

And  it  is  further  adjudged  and  decreed,  that  the  purchaser  or 
purchasers,  of  the  said  premises,  be  let  into  possession  thereof  and 
that  any  of  the  parties  to  this  action  who  may  be  in  possession  of 
said  premises  or  any  part  thereof,  and  any  said  person  who  since 


PARTITION.  203 


Art.  II.     Interlocutory  Judgment. 


the  commencement  of  this  action  has  come  into  possession  thereof, 
deliver  possession  thereof  to  such  purchaser  or  purchasers,  on  the 
production  of  the  referee's  deed  of  said  premises. 

And  it  appearing  to  the  court  that  the  defendant  Mary  Estelle 
Lackey  has  collected  and  received  the  rents  of  said  premises  since 
the  death  of  said  Mary  Louise  Mingay,  it  is  further  adjudged  and 
decreed  that  an  accounting  be  had  of  the  said  rents  and  profits  of 
the  said  premises,  and  that  the  said  referee  who  is  hereby  appointed 
referee  for  that  purpose,  take  and  state  an  account  of  the  rents  and 
profits  of  said  premises  collected  and  received  by  the  said  defendant 
Mary  Estelle  Lackey,  since  the  death  of  the  said  Mary  Louise 
Mingay,  and  that  any  amount  found  due  to  any  of  the  parties  to  this 
action  be  paid  by  said  referee  out  of  the  share  of  the  defendant 
Mary  Estelle  Lackey  in  the  proceeds  of  sale  herein,  and  that  judg- 
ment be  rendered  against  her  herein  for  any  deficiency. 

And  it  is  further  adjudged  and  decreed,  that  the  said  referee  make 
a  report  of  his  proceedings  under  this  judgment  subsequent  to  the 
confirmation  of  his  report  of  sale  to  be  made  as  hereinbefore 
directed. 

And  it  is  further  adjudged  and  decreed  that  the  verdict  of  the 
jury  rendered  herein  at  a  circuit  court  held  at  the  town  of  White 
Plains,  Westchester  County,  on  the  17th  day  of  March,  1893,  upon 
the  issues  raised  by  the  complaint  and  the  answer  of  the  defendant 
Mary  Estelle  Lackey  in  favor  of  the  plaintiff  Elwood  B.  Mingay  and 
against  the  defendant  Mary  Estelle  Lackey,  be  and  the  same  hereby 
is,  in  all  things  confirmed,  with  costs  to  the  said  plaintiff  against 
said  defendant,  as  hereinbefore  provided. 

And  it  is  further  ordered  and  adjudged  that  the  complaint  herein 
be  dismissed  as  to  the  defendant  Edwin  D.  Lackey  without  costs, 
and  the  parties  to  this  action  may  at  any  time  hereafter  make  ap- 
plication to  the  court  at  the  foot  of  this  judgment  for  such  further 
order  or  direction  in  the  premises  as  may  be  found  necessary. 

J.    O.    DYKMAN, 

J.    S.    C. 


204 


PARTITION. 


Art.  II.     Interlocutory  Judgment. 


Precedent   for   Interlocutory  Judgment  with  Special  Pro- 


visions. 


At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  court  house  in  the  City  and  County  of  New  York  on 
the  23rd  day  of  June,  1893. 

Present  —  Hon.  Charles  H.  Truax,  Justice. 


Michael  Bowen,  Plaintiff, 
agst. 

Michael  Sweeney,  Catherine  Gallagher  and  Francis 
Gallagher,  her  husband;  Joseph  Sweeney  and 
Mary  Sweeney,  his  wife;  Patrick  Sweeney  and 
Ann  Sweeney,  his  wife;  Mary  O'Donnell,  widow; 
Barney  Sweeney  and  Helen  Sweeney,  his  wife 
(the  plaintiff  being  ignorant  of  the  names  of  the 
said  wives,  they  are  designated  by  fictitious 
names),  the  said  Michael,  Catherine,  Joseph,  Pat- 
rick, Mary  and  Barney  being  children  of  Ann 
Sweeney,  deceased,  sister  of  the  testator,  John 
Bowen,  deceased;  Eliza  Sweeney,  Robert  Sweeney 
and  Eleanor  Sweeney,  the  widow,  children  and 
heirs-at-law  of  John  Sweeney  deceased,  a  son  of 
said  Ann  Sweeney  deceased,  (the  plaintiff  being 
ignorant  of  the  names  of  the  said  widow,  children 

!^  and  heirs-at-law,  they  are  designated  by  fictitious 
names),  et  al.  Defendants. 


.  143  N.  Y.  349. 


The  issues  of  fact  joined  in  this  action  having  been  duly  tried  by 
a  jury  pursuant  to  sections  1544  and  970  of  the  Code  of  Civil  Proced- 
ure, and  a  verdict  having  been  duly  rendered  and  entered  as  men- 
tioned and  set  forth  in  the  findings  of  fact  hereinafter  referred  to, 
and  the  further  trial  and  hearing  of  this  action  upon  the  pleadings, 
proceedings,  evidence  and  proofs,  and  upon  the  said  verdict  having 
been  duly  had,  and  the  arguments  of  counsel  for  the  respective 
parties  having  been  duly  considered,  and  the  findings  of  fact  and 
conclusions  of  law  and  the  decision  of  the  court  having  been  duly 
made  and  filed,  and  due  notice  of  the  settlement  of  this  judgment 
having  been  duly  given,  and  the  court  having  heard  Flamen  B. 
Candler,  Esq.,  attorney  for  the  plaintiff  Michael  Bowen,  and  Francis 
C.  Devhn,  Esq.,  attorney  for  the  defendant  Michael  Sweeney; 
Messrs.  Arnoux,  Ritch  and  Woodford,  attorneys  for  the  defendant 
Catherine  Gallagher;  Bernard  Zwinge,  Esq.,  attorney  for  the  de- 
fendant Francis  Gallagher;  William  J.  Kelly,  Esq.,  attorney  for  the 
defendants  Bridget  McNulty  and  David  McNulty,  her  husband; 
and  all  the  other  defendants  having  been  duly  served  with  the  sum- 
mons in  this  action  and   having  made  a  default,  and  due  notice  of 


PARTITION.  20: 


Art.  II.     Interlocutory  Judgment. 


the  pendency  of  this  action  having  been  duly  filed  and  the  proofs  of 
the  regularity  of  the  proceeding  herein  having  been  made  and  filed, 

It  is  ordered,  adjudged  and  decreed,  and  this  court  by  virtue  of 
the  power  and  authority  in  it  vested  doth  order,  adjudge  and  decree: 

First.  That  John  Bowen,  at  the  time  of  the  execution  of  his  last 
will  and  testament,  mentioned  and  described  in  the  second  amended 
complaint  in  this  action,  and  at  the  time  of  his  death,  was  seized  in 
fee  simple  and  was  in  possession  of  those  certain  lots,  pieces  or 
parcels  of  ground  situate,  lying  and  being  in  the  seventeenth  ward 
of  the  City  of  New  York  and  known  as  lots  numbered  three  hundred 
and  forty-four  (344)  and  three  hundred  and  forty- five  (345)  on  map 
of  lands  in  the  City  of  New  York,  lying  and  being  between  Tenth 
and  Twentieth  streets  and  between  Second  avenue  and  East  River, 
devised  by  Peter  Gerard  Stuyvesant,  deceased,  to  Julia  Stuyvesant 
and  others,  and  together  bounded  and  described  as  follows: 

(Insert  description.) 

and  that  being  so  seized  and  possessed  of  the  said  property,  said 
John  Bowen  died  on  or  about  the  14th  day  of  March,  1863. 

Second.  That  the  said  John  Bowen,  in  his  lifetime  and  on  or 
about  the  12th  day  of  June,  1862,  duly  made,  executed,  published 
and  declared  his  last  will  and  testament,  a  copy  of  which  said  in- 
strument is  set  forth  in  full  in  the  second  amended  complaint  in  this 
action. 

Third.  That  the  said  will  of  the  said  John  Bowen  was  duly  proved 
before  the  Surrogate  of  the  County  of  New  York,  to  whom  jurisdic- 
tion in  that  behalf  belonged  as  a  will  of  real  and  personal  property, 
and  the  said  surrogate  duly  admitted  the  said  will  to  probate  and 
duly  issued  letters  testamentary  thereon,  to  his  executors  therein 
named,  who  duly  qualified  as  such,  namely,  to  the  defendant  John 
A.  McLaughlin  on  the  9th  day  of  April,  1863,  on  which  day  the  said 
will  and  the  decree  admitting  the  same  to  probate  was  duly  recorded 
in  the  office  of  the  said  surrogate  and  to  the  plaintiff  on  the  26th  day 
of  February,  1886. 

Fourth.  That  the  said  John  Bowen  left  him  surviving  his  only 
children  and  heirs-at-law,  his  daughter  Mary  Teresa  Bowen,  and 
his  two  sons  Francis  J.  Bowen  and  Thomas  F.  Bowen. 

Fifth.  That  after  the  death  of  the  said  John  Bowen,  and  on  or 
about  the  first  day  of  November,  1863,  his  said  son  Francis  J.  Bowen 
died  in  the  City  and  County  of  New  York  where  he  then  resided, 
unmarried,  intestate  and  without  issue. 

Sixth.  That  the  said  Thomas  F.  Bowen,  the  other  son  of  the  said 
testator  John  Bowen,  deceased,  died  in  the  City  of  New  York,  where 
he  then  resided,  about  the  month  of  April,  1868,  intestate  and  with- 
out issue,  but  leaving  a  widow  who  is  since  deceased. 

Seventh.  That  the  said  Mary  Teresa  Bowen,  daughter  of  said 
John  Bowen  deceased,  intermarried  with  one  James  Hatten,  and 
she  survived  him,  and  after  his  death  and  on  or  about  the  27th  day 
of  August,  1885,  the  said  Mary  Teresa  Hatten  died  in  the  City  of 
New  York,  a  widow  and  without  issue. 

Eighth.  That  the  said  daughter  of  the  said  testator,  John  Bowen, 


2o6 


PARTITION. 


Art.  II.     Interlocutory  Judgment. 


by  her  married  name  of  Mary  Teresa  Hatten,  on  or  about  the  17th 
day  of  April,  1880,  signed  a  certain  paper  writing,  which  purported 
to  be  her  last  will  and  testament,  in  and  by  which  she  purported  to 
will,  devise  and  bequeath  all  her  property  and  estate  of  every  kind 
and  description,  both  real  and  personal,  of  which  she  might  die 
seized  or  possessed  to  the  defendants  Michael  Sweeney  and  Cathe- 
rine Gallagher,  to  be  divided  equally  between  them,  share  and 
share  alike,  to  have  and  to  hold  the  same  to  them  and  their  heirs 
forever,  and  in  and  by  which  said  paper  writing  she  purported  to 
nominate,  constitute  and  appoint  the  said  defendant  Michael 
Sweeney  to  be  the  executor  of  her  last  will  and  testament. 

Ninth.  That  at  or  immediately  after  the  time  when  the  said  Mary 
Teresa  Hatten  signed  the  paper  writing  dated  the  17th  day  of  April, 
1880,  which  said  paper  writing  on  the  trial  of  this  action  has  been 
marked  exhibit  A,  and  purporting  to  be  her  last  will  and  testament 
and  mentioned  in  the  second  amended  complaint  herein,  she  pub- 
lished and  declared  the  same  to  be  her  last  will  and  testament. 

Tenth.  That  the  said  paper  writing  was  obtained  from  the  said 
Mary  Teresa  Hatten  by  undue  influence  exercised  upon  her  by  the 
defendant  Michael  Sweeney,  Catherine  Gallagher  and  Francis 
Gallagher,  some  or  one  of  them. 

Eleventh.  That  the  said  paper  writing  was  obtained  from  the  said 
Mary  Teresa  Hatten  by  a  conspiracy  entered  into  by  the  defendants 
Michael  Sweeney,  Catherine  Gallagher  and  some  other  person  or 
persons  for  the  purpose  of  fraudulently  procuring  a  will  in  favor 
of  the  said  Michael  Sweeney  and  Catherine  Gallagher  in  pursuance 
of  which  conspiracy  they  procured  the  said  paper  writing  to  be 
signed  by  the  said  Mary  Teresa  Hatten. 

Twelfth.  That  the  said  Mary  Teresa  Hatten  at  the  time  she 
executed  the  said  paper  writing  was  not  of  sound  mind. 

Thirteenth.  That  the  said  paper  writing  executed  by  the  said 
Mary  Teresa  Hatten  is  not  her  last  will  and  testament. 

Fourteenth.  That  the  apparent  devise  by  the  said  Mary  Teresa 
Hatten  in  and  by  the  said  paper  writing  which  purports  to  be  her 
last  will  and  testament,  is  void. 

Fifteenth.  That  at  the  time  of  the  death  of  the  said  testator  John 
Bowen,  on  the  14th  day  of  March,  1863,  his  only  brothers  and  sis- 
ters then  living  and  the  only  heirs  of  such  of  his  brothers  and 
sisters  as  were  then  dead,  were  the  following  named  persons,  that 
is  to  say,  the  plaintiff  Michael  Bowen  of  the  City  of  New  York,  a 
brother  of  the  said  testator  John  Bowen,  being  deceased;  Pat- 
rick Bowen  of  Ballinamore,  County  of  Leitrim,  Ireland,  a  brother 
of  the  said  testator  John  Bowen,  deceased;  Ann  Sweeney  of  said 
Ballinamore,  a  sister  of  the  said  testator  John  Bowen,  deceased ; 
Bridget  Ford  of  said  Ballinamore,  a  sister  of  the  testator  John 
Bowen,  deceased;  Bridget  Bowen  of  the  said  Ballinamore,  a  daugh- 
ter of  the  said  Thom.as  Bowen,  deceased,  w^ho  was  a  brother  of  the 
testator  John  Bowen;  Bridget  McNulty  of  said  Ballinamore,  Mary 
Ann  Cane  and  Catherine  Ward  now  of  New  York  City,  children  of 
Catherine  Reynolds,  deceased,  who  was  a  sister  of  the  said  testator 
John  Bowen,  deceased. 


PARTITION.  207 


Art.  II.     Interlocutory  Judgment. 


Sixteenth.  That  at  the  time  of  the  death  of  the  said  Mary  Teresa 
Hatten,  the  last  surviving  child  of  the  said  testator,  John  Bowen, 
his  brothers  and  sisters  then  living  and  the  descendants  of  such  of 
them  as  were  then  dead,  were  the  following  persons: 

(Insert.) 

Seventeenth.  That  the  said  Ann  Sweeney,  the  said  deceased  sister 
of  the  said  testator  John  Bowen,  never  came  into  the  United  States, 
and  she  died  in  Ballinamore,  County  of  Leitrim,  Ireland,  after  the 
decease  of  the  said  Mary  Teresa  Hatten,  and  died  in  or  about  the 
month  of  November,  1883,  leaving  her  surviving  her  children  the 
defendants  Michael  Sweeney,  Catherine  Gallagher,  Joseph  Sweeney, 
Patrick  Sweeney,  Mary  O'Donnell,  Barney  Sweeney,  Francis 
Sweeney,  Teresa  McNulty  and  Thomas  Sweeney,  and  her  grand- 
children defendants  Eliza  Sweeney,  Robert  Sweeney  and  Eleanor 
Sweeney,  children  of  her  deceased  son  John  Sweeney,  and  Hugh 
O'Donnell,  sued  as  George  O'Donnell,  Emma  O'Donnell,  sued  as 
Edward  O'Donnell,  Lizzie  O'Donnell,  sued  as  Harriet  O'Donnell, 
Julia  O'Donnell,  sued  as  Patrick  O'Donnell,  and  Mary  O'Donnell, 
sued  as  Ellen  O'Donnell,  children  of  her  deceased  daughter  Ann 
O'Donnell. 

Eighteenth.  That  the  said  Mary  Teresa  Hatten,  the  last  surviving 
child  of  the  said  testator  John  Bowen,  at  the  time  of  her  death  was 
a  citizen  of  the  United  States  and  resided  in  the  State  of  New  York, 
and  left  her  surviving  no  father  or  mother  and  no  lineal  descendants 
or  any  brother  or  sister  or  child  or  children  or  issue  of  a  deceased 
brother  or  sister. 

Nineteenth.  That  the  heirs  of  the  said  Mary  Teresa  Hatten  are 
such  of  the  same  persons  hereinabove  mentioned  in  the  sixteenth 
section  of  this  judgment  as  at  the  time  of  her  decease,  were  capable 
of  taking  real  property  situate  in  the  State  of  New  York,  by  descent, 
and  they  are  the  following  named  persons  only,  namely,  Michael 
Bowen  of  the  City  of  New  York,  the  plaintiff,  and  the  defendants 
Thomas  Bowen  and  Michael  Bowen  of  Woonsocket  Falls,  Rhode 
Island,  and  Fannie  McQueeny,  three  of  the  children  of  Patrick 
Bowen,  a  deceased  brother  of  the  said  testator  John  Bowen,  Patrick 
Ford,  Francis  Ford,  Michael  Ford  and  Thomas  Ford  of  Syracuse, 
N.  Y.,  children  of  Bridget  Ford,  a  deceased  sister  of  the  said 
testator  John  Bowen,  and  Mary  Ann  Cane  and  Catherine  Ward  of 
the  City  of  New  York,  children  of  Catherine  Reynolds,  a  deceased 
sister  of  the  said  testator  John  Bowen. 

Twentieth.  That  neither  the  said  testator  John  Bowen  nor  the 
said  Mary  Teresa  Hatten  left  any  real  estate  in  the  State  of  New 
York  other  than  that  hereinabove  mentioned  and  described. 

Twenty-first.  That  upon  the  death  of  the  said  Mary  Teresa  Hat- 
ten, intestate,  and  without  issue,  the  said  property  described  in  the 
said  second  amended  complaint,  being  the  real  property  hereinabove 
particularly  described,  became  vested  in  the  following  named  per- 
sons, parties  to  this  action,  in  the  shares  and  proportions  set  oppo- 
site their  names  respectively,  and  they  hold  and  own  the  same  in 
such  shares  and  proportions,  the  said  persons  being  the  heirs  of  the 


2o8 


PARTITION. 


Art.  II.     Interlocutory  Judgment. 


said  Mary  Teresa  Hatten,  who  were  capable  of  taking  real  property 
situate  in  the  State  of  New  York,  by  descent  at  the  time  of  her 
decease,  namely: 

The  plaintiff  Michael  Bowen,  one-fourth. 

The  defendant  Thomas  Bowen,  son  of  Patrick  Bowen,  a  deceased 
brother  of  the  said  testator  John  Bowen,  one-twelfth. 

The  defendant  Michael  Bowen,  a  son  of  the  said  Patrick  Bowen, 
one-twelfth 

The  defendant  Fannie  McQueeny,  a  daughter  of  the  said  Patrick 
Bowen,  one-twelfth. 

The  defendant  Patrick  Ford,  a  son  of  Bridget  Ford,  a  deceased 
sister  of  the  said  testator  John  Bowen,  one-sixteenth. 

The  defendant  Francis  Ford,  a  son  of  the  said  Bridget  Ford,  one 
sixteenth. 

The  defendant  Michael  Ford,  a  son  of  the  said  defendant  Bridget 
Ford,   one-sixteenth. 

The  defendant  Thomas  Ford,  a  son  of  the  said  Bridget  Ford,  one- 
sixteenth. 

The  defendant  Mary  Ann  Cane,  a  daughter  of  Catherine  Rey- 
nolds, a  deceased  sister  of  the  said  testator  John  Bowen,  one-eighth. 

The  defendant  Catherine  Ward,  a  daughter  of  the  said  Catherine 
Reynolds,  one-eighth. 

Twenty-second.  That  the  said  share  of  the  said  plaintiff  Michael 
Bowen  is  not  subject  to  any  lien  or  incumbrance  whatsoever  ex- 
cept to  its  proper  proportionate  part  or  share  of  such  amount,  if 
any,  as  the  referee  hereinafter  appointed  shall  find  due  on  the 
mortgage  for  twelve  hundred  dollars  hereinafter  mentioned  and 
referred  to. 

Twenty-third.  That  the  said  shares  of  the  said  defendants  herein- 
above found  to  be  seized  of  the  said  lands  described  in  the  said 
second  amended  complaint,  together  with  the  plaintiff,  are  subject 
respectively,  to  their  proper  proportional  part  or  share  of  such 
amount,  if  any,  as  the  said  referee  shall  find  due  on  said  mortgage 
and  are  also  subject  respectively  as  follows: 

The  share  of  the  said  defendant  Thomas  Bowen  is  subject  to  the 
inchoate  right  of  dower  of  his  wife,  the  defendant  Bridget  Bowen. 
The  share  of  the  said  Michael  Bowen  is  subject  to  the  inchoate  right 
of  dower  of  his  wife,  the  defendant  Julia  Bowen.  The  share  of  the 
said  defendant  Fannie  McQueeny  is  subject  to  the  tenancy  by  the 
curtesy  initiate  of  her  husband  the  defendant  George  McQueeny. 
The  share  of  the  said  defendant  Patrick  Ford  is  subject  to  the  in- 
choate right  of  dower  of  his  wife,  the  defendant  Mary  Ford.  The 
share  of  the  said  defendant  Francis  Ford  is  subject  to  the  inchoate 
right  of  dower  of  his  wife  the  defendant  Ida  Ford.  The  share  of 
the  said  defendant  Thomas  Ford  is  subject  to  the  inchoate  right  of 
dower  of  his  wife  Eliza  Ford.  The  share  of  the  said  defendant 
Mary  Ann  Cane  is  subject  to  the  tenancy  by  the  curtesy  initiate  of  her 
husband  the  defendant  John  Cane  and  the  share  of  the  said  defend- 
ant Catherine  Ward  is  subject  to  the  tenancy  by  the  curtesy  initiate 
of  her  husband  the  defendant  Henry  Ward. 


PARTITION.  209 


Art.  II.      Interlocutory  Judgment. 


Twenty-fourth.  That  none  of  the  other  parties  to  this  action  have 
any  right,  title  or  interest,  of,  in  or  to  the  said  premises  or  any  part 
thereof. 

Twenty-fifth.  That  the  said  premises  are  not,  nor  is  any  part 
thereof,  nor  is  any  share  or  interest  therein  of  any  or  either  of  the  said 
above-named  persons  who  have  been  hereinabove  adjudged  to  be  the 
owners  of  the  said  premises,  subject  to  any  general  or  specific  lien 
or  incumbrance,  by  mortgage,  judgment,  decree  or  otherwise,  nor 
has  any  creditor  not  a  party  to  this  action  a  specific  lien  by  mort- 
gage or  otherwise  on  the  undivided  share  or  interest  of  any  of  the 
said  persons  above  mentioned,  with  the  exception  only  that  each  of 
the  said  shares  or  interests  is  subject  to  the  payment  of  its  proper 
proportion  of  such  amount,  if  anything,  as  the  referee  hereinafter 
appointed  shall  find  to  be  due  upon  the  mortgage  for  twelve  hundred 
dollars  hereinafter  particularly  mentioned. 

Twenty-sixth.  That  the  said  premises  are  so  circumstanced  that 
an  actual  partition  thereof  cannot  be  made  without  great  prejudice 
to  the  owners  thereof,  and  that  a  sale  thereof  and  of  the  whole  of 
the  said  premises  is  necessary. 

Twenty-seventh.  That  neither  the  parties  to  this  action  nor  such 
of  them  as  are  hereinbefore  found  to  be  the  owners  of  said  premises 
described  in  the  said  second  amended  complaint  in  this  action,  are 
the  owners  of,  or  interested  in  any  other  real  property  situate  in  the 
State  of  New  York  in  which  they  alone  are  the  owners. 

Twenty-eighth.  That  the  said  premises  hereinabove  described  be 
sold  at  public  auction  in  the  City  of  New  York,  in  the  County  of 
New  York,  where  the  premises  are  situated,  by  Charles  W.  Da3rton5, 
Esq.,  of  the  said  city,  a  counsellor  of  this  court,  who  is  hereby  ap- 
pointed a  referee  for  that  purpose. 

Twenty-ninth.  That  the  said  lots  be  sold  separately  as  now  built 
upon,  for  cash,  or  in  such  other  manner  as  the  said  referee  shrJI  de- 
termine, and  that  such  referee  give  public  notice  of  the  time  r-nd 
place  of  such  sale  according  to  law  and  the  rules  and  practice  of 
this  court.  The  said  premises  so  to  be  sold  are  bounded  and  de- 
scribed as  follows: 

(Insert  description.) 

together  with  all  and  singular  the  tenements,  hereditaments  and  ap- 
purtenances hereunto  belonging. 

Thirtieth.  That  the  rights  of  dower  of  the  defendants  Bridget 
Bowen,  wife  of  Thomas  Bowen ;  Julia  Bowen,  wife  of  Michael 
Bowen;  Mary  Ford,  wife  of  Patrick  Ford;  Ida  Ford,  wife  of  Francis 
Ford,  and  Eliza  Ford,  wife  of  Thomas  Ford,  be  included  in  the  said 
sale,  and  the  purchasers,  their  heirs  and  assigns,  shall  hold  the  prop- 
erty free  and  discharged  from  any  claim  by  virtue  of  said  rights,  and 
that  the  rights  as  tenants  by  the  curtesy  initiate  of  defendant 
George  McQueeny,  husband  of  Fannie  McQueeny,  and  of  the  defend- 
ant John  Cane,  husband  of  Mary  Ann  Cane,  and  of  the  defendant 
Henry  Ward,  husband  of  Catherine  Ward,  be  also  included  in  the 
sale,  and  the  purchasers,  their  heirs  and  assigns,  shall  hold  the 
property  free  and  discharged  of  any  claim  by  virtue  of  such  rights, 

[Special  Actions  —  14.] 


210  PARTITION. 


Art.  II.     Interlocutory  Judgment. 


and  that  the  plaintiff  or  any  party  or  parties  to  this  action  may  upon 
such  sale  become  the  purchaser  or  purchasers  of  the  premises  sold 
or  any  part  thereof. 

Thirty-first.  That  the  said  referee  do  forthwith,  after  such  sale, 
make  a  report  thereof  to  this  court,  and  when  his  report  of  sale 
shall  have  been  duly  confirmed  then  that  he  execute  to  the  pur- 
chaser or  purchasers  of  the  premises  sold  by  him,  a  sufficient  deed 
or  deeds  of  conveyance  in  the  law  in  the  proper  form  for  the  same 
on  his  or  their  complying  with  the  conditions  upon  which  the  deed  or 
deeds  was  or  were  to  be  delivered;  and  that  sale  and  conveyance 
or  conveyances  be  valid  and  effectual  forever,  and  that  each  party 
to  this  action  is  hereby  required  on  demand  of  the  purchaser  or 
purchasers  of  said  premises,  or  of  any  parcel  thereof,  to  deliver 
to  such  purchaser  or  purchasers  of  all  title,  deeds  or  writings, 
under  the  control  of  such  party,  that  relate  wholly  to  the  premises 
bought  by  such  purchaser  or  purchasers  or  to  any  part  thereof, 
and  that  the  purchaser  or  purchasers  of  said  premises  or  any 
part  thereof,  at  such  sale,  be  let  into  possession,  and  that  each 
party  or  other  person  upon  whom  this  judgment  is  binding  who  may 
be  in  possession  of  the  premises  purchased  or  of  any  part  thereof, 
is  hereby  directed  to  deliver  possession  of  the  same  to  the  purchaser 
or  purchasers  on  production  of  the  referee's  deed. 

Thirty-second.  That  the  said  referee  shall  also  ascertain  and  re- 
port whether  the  said  defendants  Bridget  Bowen,  wife  of  Thomas 
Bowen;  Julia  Bowen,  wife  of  Michael  Bowen;  Mary  Ford,  wife  of 
Patrick  Ford ;  Ida  Ford,  wife  of  Francis  Ford,  and  Eliza  Ford,  wife 
of  Thomas  Ford,  or  either  or  any  of  them,  will  consent  that  the 
parts  or  shares  of  the  net  proceeds  of  sale  belonging  to  their  re- 
spective husbands  be  paid  to  such  husbands,  and  such  of  whom  will 
not  so  consent,  but  will  consent  to  receive  a  sum  in  gross  in  lieu 
and  satisfaction  of  her  or  their  dower,  and  such  of  whom  as  will 
neither  consent  that  payment  be  made  to  her  or  her  or  their  hus- 
bands nor  consent  to  receive  a  sum  in  gross;  and  that  the  said 
referee  shall  take  from  such  of  the  said  wives  as  will  execute  the 
same  a  consent  in  form  and  acknowledged  or  proved  and  certified  in 
like  manner  as  a  deed  to  be  recorded,  and  that  her  husband's  share 
be  paid  over  to  him;  and  also  take  from  each  of  such  wives  who 
will  not  consent  to  such  payment,  but  who  are  willing  to  receive  a 
sum  in  gross  in  lieu  of  dower,  consent  in  form  and  acknowledged 
or  proved  and  certified  as  hereinabove  provided,  to  accept  a  sum  in 
gross;  and  also  that  he  ascertain  and  report  which  of  the  said  wives 
\;ill  neither  consent  to  the  whole  or  part  of  her  share  being  paid  to 
her  husband  or  to  receiving  a  sum  in  gross  for  her  interest  therein, 
and  that  such  referee  file  such  consents  in  the  office  of  the  clerk  of 
this  court  at  the  time  of  filing  his  said  report  of  sale. 

Thirty-third.  That  all  other  directions,  including  the  proper 
adjudications  and  directions  for  the  distribution  of  the  proceeds  to 
be  realized  from  the  sale  of  the  said  premises  amongst  the  plaintiff 
Michael  Bowen,  and  the  defendants  Thomas  Bowen,  Michael  Bowen, 
Fannie  McQueeny,  Patrick  Ford,  Francis  Ford,  Michael  Ford, 
Thomas  Ford,  Mary  Ann  Cane  and  Catherine  Ward,  the  owners  of 


PARTITION.  211 


Art.  II.     Interlocutory  Judgment. 


the  said  premises,  as  more  particularly  mentioned  and  set  forth  in 
the  2ist  section  of  this  judgment,  and  including  also  the  granting 
of  costs  and  an  allowance  to  the  plaintiff  Michael  Bowen,  and  to  the 
defendants  Thomas  Bowen,  a  son  of  Patrick  Bowen,  a  deceased 
brother  of  the  said  testator  John  Bowen;  defendant  Michael  Bowen, 
a  son  of  the  said  Patrick  Bowen,  deceased;  the  defendant  Fannie 
McQueeny,  a  daughter  of  the  said  Patrick  Bowen,  deceased;  the 
defendant  Patrick  Ford,  a  son  of  Bridget  Ford,  a  deceased  sister  of 
the  said  testator  John  Bowen;  the  defendant  Francis  Ford,  a  son  of 
the  said  Bridget  Ford;  the  defendant  Michael  Ford,  a  son  of  the 
said  Bridget  Ford;  the  defendant  Thomas  Ford,  a  son  of  the  said 
Bridget  Ford;  the  defendant  Mary  Ann  Cane,  a  daughter  of  Cathe- 
rine Reynolds,  the  said  sister  of  the  said  testator  John  Bowen,  and 
the  defendant  Catherine  Ward,  a  daughter  of  the  said  Catherine 
Reynolds,  be  and  are  hereby  reserved  until  the  coming  in  of  said 
referee's  report  of  sale,  and  that  any  party  in  interest  shall  be  at 
liberty  to  apply  to  this  court  for  further  directions  or  instructions 
at  the  foot  of  this  decree  whenever  it  may  become  necessary. 

Thirty-fourth.    And  it  appearing  to   the   court   from   the   official 
searches  and  the  affidavits  hereto  annexed  which  have  been  submit- 
ted to  the  court,  that  on  or  about  January  12th,  1874,  the  said  Mary 
Teresa  Hatten  executed  a  mortgage  on  the  whole  of  the  said  premi- 
ses to  one  Catherine  Cummins,  to  secure  the  payment  of  twelve 
hundred  dollars  and  interest,  which  mortgage  was  dated  on  the  said 
i2th  day  of  January,    1874,   and  was  on  that  date  recorded  in  the 
office  of  the  register  of  the  City  and  County  of  New  York  in  Liber 
I,    137  of  mortgages,   page  349,  and  that  subsequently  and  on  or 
about  February  8th,  1875,  the  said  Catherine  Cummins  assigned  the 
said  mortgage  to  Francis  Heggan  and  Alice  Kelly,  by  an  assignment 
dated  and  recorded  on  that  day  in  the  said  register's  office  in  Liber 
1209  of  mortgages,  page  349,  and  that  the  said  Francis  Heggan  and 
Alice   Kelly   subsequently  assigned    the  said    mortgage  to  the   de- 
fendant Michael   Sweeney  by  an  assignment  dated  July  2nd,  1878, 
and  recorded   in  the  said  register's  office  December  i6th,  1880,  in 
Liber   1339  of  mortgages,  page  34,  and  that  the  said  mortgage  still 
remains  of  record  against  the  said  property  and   that  the  plaintiff 
claims  that  the  said  mortgage  has  been  extinguished  and  paid  and  is 
no  longer  a  lien  upon  the  said  premises,  and   also  claims  that  the 
said  defendant  Michael  Sweeney,  since  the  death  of  the  said  Mary 
Teresa  Hatten,  and  also  since  the  commencement  of  this  action,  has 
received  divers  large  sums  as  and  for  the  rents  of  the  said  premises 
for  which  he  has  not  accounted  and  for  which  he  is  accountable  in 
this  action,  and  that  in  case    the  said  mortgage  was  not  paid  before 
the   decease   of   the   said   Mary   Teresa  Hatten,  then   that  the  said 
rents  so  received  by  the  said  defendant  Michael   Sweeney  so    far 
as    shall    be    necessary,    should    be    applied    toward    the    payment 
and    extinguishment    of    the    said    mortgage,    and    that     the    said 
mortgage  should  be  adjudged  to  have  been  paid  and  extinguished, 
and  it  is 

Further  ordered,  adjudged  and  decreed,  and   this  court  by  virtue 
of  the  power  and  authority  in  it  vested,  doth  order,  adjudge  and 


212  PARTITION. 


Art.  12.     Dower  Interest  and  How  Affected  by  Sale. 

decree  that  the  said  premises  be  sold  by  the  said  referee  as  herein- 
above directed,  free  and  clear  of  and  from  the  lien  of  the  said 
mortgage,  and  that  the  said  referee  shall  ascertain  and  report  in  and 
by  his  said  report  as  hereinabove  directed  to  be  made,  what  amount, 
if  any,  remains  due  and  unpaid  upon  the  said  mortgage,  and  what 
amounts  the  said  defendant  Michael  Sweeney  has  received  or  is  ac- 
countable for  from  the  rents  of  the  said  premises,  and  what  amount 
thereof  should  be  allowed  to  him  in  extinguishment  and  payment  of 
the  said  mortgage,  to  the  end  that  upon  the  coming  in  and  con- 
firmation of  the  said  report,  the  proper  adjudication  may  be  had  in  re- 
spect to  the  said  mortgage,  adjudging  and  decreeing  that  the  same 
has  been  paid,  or  what  amount  remains  due  thereon  or  otherwise, 
and  as  shall  appear  just  and  equitable  in  the  premises,  and  that  on 
the  said  reference,  the  said  referee  shall  have  all  the  powers  and 
authority  of  a  referee  duly  appointed  by  this  court  to  ascertain  and 
report  the  facts  to  the  court,  and  that  the  said  referee  shall  annex 
to  his  said  report  all  proofs  which  shall  be  taken  before  him  on  the 
said  reference,  and  if  said  referee  finds  anything  is  due  on  such 
mortgage,  he  is  hereby  directed  to  pay  the  amount  so  due  to  said 
Michael  Sweeney. 

Enter.  ,,  C.  H.  TRUAX, 

J.  S.  Ct. 

ARTICLE  XII. 

Dower  Interest  and   How  Affected  by  Sale.    §§  1567, 
1568,  1569,  1570,  1 571.     Rules  70,  68. 

§  1567.  Sale  of  dowrer  interest. 

Where  a  party  has  an  existing  right  of  dower  in  the  entire  property  directed  to 
be  sold,  at  the  time  when  an  interlocutory  judgment  for  a  sale  is  rendered  in  an 
action  for  partition,  the  court  must  consider  and  determine  whether  the  interests 
of  all  the  parties  require,  that  the  right  of  dower  should  be  excepted  from  the 
sale,  or  that  it  should  be  sold. 

§  1568.  Purchaser  to  hold  the  property  free  therefrom. 

If  a  sale  of  the  property,  including  the  right  of  dower,  is  directed,  the  interest 
of  the  party  entitled  to  the  right  of  dower  shall  pass  thereby  ;  and  the  purchaser, 
his  heirs  and  assigns,  shall  hold  the  property  free  and  discharged  from  any 
claim,  by  virtue  of  that  right.  In  that  case,  the  dowress  is  entitled  to  receive, 
from  the  proceeds  of  the  sale  of  the  whole  property,  a  gross  sum,  in  satisfaction 
of  her  right  of  dower,  or  to  have  one-third  of  those  proceeds  paid  into  court,  for 
the  purpose  of  being  invested  for  her  benefit,  as  prescribed  in  the  next  section 
with  respect  to  the  dowress  of  an  undivided  share. 

§  1569.  Gross  sum  to  be  paid  to  or  invested  for  tenant  in  dower,  etc. 
A  party  to  an  action  for  partition,  who  has  a  right  of  dower,  or  is  a  tenant  for 
life,  or  for  years,  in  or  of  an  undivided  share  of  the  property  sold,  is  entitled  to 


PARTITION.  213 


Art.  12.     Dower  Interest  and  How  Affected  by  Sale. 

receive  from  the  proceeds  of  the  sale,  a  gross  sum,  to  be  fixed  according  to  tht: 
principles  of  law  applicable  to  annuities,  in  satisfaction  of  his  or  her  estate  or  in- 
terest. The  written  consent  of  the  party  to  receive  such  a  gross  sum,  acknowl- 
edged or  proved,  and  certified,  in  like  manner  as  a  deed  to  be  recorded,  must  be 
filed,  at  the  time  of,  or  before,  the  filing  of  the  report  of  sale;  otherwise,  the 
court  must  direct  that,  out  of  the  proceeds  of  the  sale,  which  belong  to  the  un- 
divided share  to  which  the  estate  or  interest  attaches,  one-third,  in  case  of  a 
dowress,  and  in  any  other  case  arising  under  this  section,  the  entire  proceeds, 
or  such  a  proportion  thereof  as  fairly  represents  the  interest  of  the  holder  of  the 
particular  estate,  be  paid  into  court  for  the  purpose  of  being  invested  for  his  or 
her  benefit. 

§  1570.  [Am'd,  1892.]     Interests  of  ow^ners  of  future  estates  to  be  protected. 

Where  it  appears,  that  a  party  to  the  action  has  an  inchoate  right  of  dower, 
or  any  other  future  right  or  estate,  vested  or  contingent,  or  that  any  person  or 
persons  not  in  being  who  may  by  any  contingency  become  entitled  to  any  interest 
or  estate,  in  the  property  sold,  the  court  must  fix  the  proportional  value  of  the 
right  or  estate,  according  to  the  principles  of  law  applicable  to  annuities  and 
survivorships,  or  set  aside  so  much  of  the  proceeds  of  sale  to  which  the  contin- 
gency attaches,  and  must  direct  that  proportion  of  the  proceeds  of  the  sale  to 
be  invested,  secured  or  paid  over,  in  such  a  manner  as  it  deems  calculated  to 
protect  the  rights  and  interests  of  the  parties. 

§  1671.  Married  woman  may  release  her  interest. 

A  married  woman  may  release  to  her  husband  her  inchoate  right  of  dower,  in 
the  property  directed  to  be  sold,  by  a  written  instrument,  duly  acknowledged 
by  her  and  certified,  as  required  by  law  with  respect  to  the  acknowledgment  or 
a  conveyance  to  bar  her  dower;  which  must  be  filed  with  the  clerk.  Thereupon 
the  share  of  the  proceeds  of  the  sale,  arising  from  her  contingent  interest,  must 
be  paid  to  her  husband. 

The  wife  cannot  be  compelled  to  relinquish  her  dower  right. 
Jackson  V.  Edzvards,  7  Paige,  392.  The  courts  lean  towards  protect- 
ing dower  rights.  Siniar  v.  Canady,  53  N.  Y.  298.  In  partition 
by  a  plaintiff  holding  title  through  a  sale  of  an  undivided  interest, 
licld^  that  the  inchoate  dower  right  of  the  wife  of  the  judgment 
debtor,  and  former  tenant  in  common,  remained  in  plaintiff's  un- 
divided share,  but  was  discharged  against  defendant's  undivided 
share.  In  distributing  the  proceeds  of  sale,  the  value  of  the 
remaining  and  undivided  dower  right  should  be  charged  upon  it, 
and  paid  for  solely  out  of  the  share  awarded  to  the  plaintiff. 
Fordw.  Knapp,  102  N.  Y.  135. 

The  inchoate  right  of  dower  of  one  of  the  tenants  in  real  prop- 
erty is  not  paramount  to  the  right  of  the  husband,  or  of  his  co- 
tenant,   to   compel   partition,   and   will   not    prevent    it.      Where 


214 


PARTITION. 


Art.  12.     Dower  Interest  and  How  Affected  by  Sale. 


actual  partition  is  made  by  the  court  the  inchoate  rights  of 
dower  in  common  attach  to  the  portion  allotted  to  their  respec- 
tive husbands,  in  severalty,  and  not  to  the  undivided  portions  or 
share  of  their  husbands  in  the  entire  property.  Huntington  v. 
Huntington,  9  Civ.  Pro.  R.  182.  The  inchoate  dower  right  of  a 
wife  is  as  much  entitled  to  protection  as  the  vested  rights  of  a 
widow.  MattJicws  v.  Duryec,  4  Keyes,  525.  It  was  the  intention 
of  2  R.  S.  318,  §  5,  to  cut  off  dower,  as  a  general  rule,  and  the 
dowress  cannot  claim,  in  another  action,  that  she  was  unlawfully 
deprived  of  her  dower  right  in  an  action  of  partition  in  which  she 
did  not  make  any  claim  of  error.  Jordan  v.  Van  Epps,  85  N.  Y. 
427. 

Where  one  of  the  parties  is  a  widow,  and  entitled  to  dower  in 
a  part  of  the  premises  and,  also,  to  the  use  and  occupation  of  such 
part  until  her  youngest  child  becomes  of  age,  the  value  of  such 
interests,  in  money,  can  be  ascertained  and  paid  to  her,  if  she 
consent  to  release  her  dower  and  accept  a  sum  in  gross,  and  her 
interests  can  be  thus  extinguished.  Bond  v.  McNiff,  38  Supr. 
Ct.  83. 

The  receiver  of  a  life  tenant  becomes  vested  with  all  the  right, 
title  and  interest  of  the  life  tenant  where  he  has  been  substituted 
for  such  tenant  in  an  action  of  partition,  and  has  a  right  to  file 
consent  to  receive  gross  sum. 


Wood  V.  Powell,  3  App.  Div.  318. 


Rule  70.  Gross  sum  in  payment  of  life  estate ;  how  ascertained. 

Whenever  a  party,  as  a  tenant  for  the  life  or  by  the  curtesy,  or  in  dower,  is  en- 
titled to  the  annual  interest  or  income  of  any  sum  paid  into  court  and  invested  in 
permanent  securities,  such  party  shall  be  charged  with  the  expense  of  investing 
such  sum,  and  of  receiving  and  paying  over  the  interest  or  income  thereof;  but 
if  such  party  is  willing  and  consents  to  accept  a  gross  sum,  in  lieu  of  such  an- 
nual interest  or  income  for  life,  the  same  shall  be  estimated  according  to  the 
then  value  of  an  annuity  of  five  per  cent  on  the  principal  sum,  during  the  prob- 
able life  of  such  person,  according  to  the  Portsmouth  or  Northampton  tables. 


PARTITION. 


215 


Art.  12.     Dower  Interest  and  How  Affected  by  Sale. 


Annuity  Table.* 
Table  showing  the  Value  of  an  Annuity  of  One  Dollar  on  a  Single 
Life,  According  to  the  Northa^npton  Table  of  Mortality,  at  Five 
Per  Cent  Interest,  referred  to  in  Supreme  Court  Rule  No.  70. 


No.  of  years' 

No.  of  years' 

No.  of  years' 

No.  of  years' 

Arc. 

purchase  the 

Age. 

purchase  the 

Age. 

purchase  the 

Age. 

purchase  the 

annuity  is 
worth. 

annuity  is 

annuity  is 
worth. 

annuity  is 

worth. 

worth. 

I 

"•563 

31 

12.965 

61 

8. 181 

91 

1.447 

2 

13.420 

32 

12.854 

62 

7.966 

92 

1. 153 

3 

14-135 

33 

12.740 

63 

7.742 

93 

.8x6 

4 

14.613 

34 

12.623 

64 

7-514 

94 

.524 

5 

14.827 

35 

12.502 

65 

7.276 

95 

.238 

6 

15.041 

36 

12.377 

66 

7-034 

7 

15.166 

37 

12.249 

67 

6.787 

8 

15.226 

38 

12. 116 

68 

6.536 

9 

15.210 

39 

11.979 

69 

6.281 

10 

15-139 

40 

11.837 

70 

6.023 

II 

15-043 

41 

11-695 

71 

5.764 

12 

15-937 

42 

"•551 

72 

5.504 

13 

14.826 

43 

11.407 

73 

5.245 

14 

14.710 

44 

11.258 

74 

4-990 

15 

14-588 

45 

II. 105 

75 

4-744 

16 

14 . 460 

46 

10.947 

76 

4-511 

17 

14-334 

47 

10.784 

77 

4.277 

18 

14.217 

48 

10.616 

78 

4.035 

19 

14.108 

49 

10.443 

79 

3.776 

20 

14.007 

50 

10.269 

80 

3.515 

21 

13-917 

51 

10.097 

81 

3.263 

22 

13-833 

52 

9-925 

82 

3.020 

23 

13-746 

53 

9.748 

83 

2.797 

24 

13-658 

54 

9-567 

84 

2.627 

25 

13-567 

55 

9-382 

85 

2.471 

26 

13-473 

56 

9-193 

86 

2-328 

27 

13-377 

57 

8.999 

87 

2.193 

28 

13.278 

58 

8.801 

88 

2.080 

29 

13-177 

59 

8.599 

89 

1.924 

30 

13.072 

60 

8.392 

90 

1.723 

♦Taken  from  "  Jones  on  Annuities,"  vol.  i,  p.  244. 

Rules  for    Computing    the    Value    of   the    Life    Estate   or 

Annuity, 

Calculate  the  interest  at  five  per  cent  for  one  year  upon  the 
sum  to  the  income  of  which  the  person  is  entitled.  Multiply 
this  interest  by  the  number  of  years'  purchase  set  opposite  the 
person's  age  in  the  table,  and  the  product  is  the  gross  value  of 
the  life  estate  of  each  person  in  said  sum. 

Suppose  a  widow's  age  is  thirty-seven,  and  she  is  entitled  to 
dower  in  real  estate  worth  $350.75.     One-third  of  this  is  $ii6.9if. 


2l6 


PARTITION. 


Art.  12.     Dower  Interest  and  How  Affected  by  Sale. 

Interest  on  $116.91  one  year  at  five  per  cent  (as  fixed  by  the  70th 
rule)  is  $5.85.  The  number  of  years'  purchase  which  an  annuity 
is  worth  at  the  age  of  thirty-seven,  as  appears  by  the  table,  is  1 2 
years  and  yVoV  parts  of  a  year,  which,  multiplied  by  $5.85,  the 
income  for  one  year,  gives  $71.65  and  a  fraction  as  the  gross  value 
of  her  right  of  dower. 

Suppose  a  man  whose  age  is  fifty  is  tenant  by  the  curtesy  in  the 
whole  of  an  estate  worth  $9,000.  The  annual  interest  on  the  sum 
at  five  per  cent  is  $450.  The  number  of  years'  purchase  which 
an  annuity  of  one  dollar  is  worth  at  the  age  of  fifty,  as  per  table, 
is  iOj2^y„  parts  of  a  year,  which,  multiplied  by  $450,  the  value  of 
one  year,  gives  $4,621.05  as  the  gross  value  of  his  estate  in  the 
premises  or  the  proceeds  thereof. 

Release  of  Dower  by  Widow. 

SUPREME  COURT. 


CORNELIUS  BRUYN 

agst. 

JAMES  V.  BRUYN  and  Others. 


I,  Jane  A.  Bruyn,  one  of  the  defendants  in  the  above-entitled 
action,  hereby  acknowledge  the  receipt  from  James  A.  Betts,  the 
referee  who  sold  the  real  estate  of  Cornelius  A.  Bruyn,  deceased, 
under  the  judgment  herein,  of  $2,372,  being  my  share  of  the  pro- 
ceeds of  the  sale  under  the  said  judgment  in  this  action,  and  in 
consideration  thereof  I  hereby  release  and  quit-claim  to  Albert  L. 
Roe,  the  purchaser  at  such  sale,  all  my  estate,  right,  title,  interest, 
dower  and  right  of  dower  in  and  to  the  premises  sold  as  aforesaid. 

Witness  my  hand  and  seal  this  June  23,  1888. 

JANE    A.    BRUYN.      [L.    S.] 

The  following  direction  was  made  as  to  a  contingent  dower 
right  in  an  individual  share:  The  principal  of  that  one-third  may, 
if  the  purchaser  so  elect,  be  retained  in  the  trust  company,  to 
accumulate  there  until  she  shall  be  twenty-one  years  of  age,  and 
not  to  be  paid  out  after  she  shall  become  of  age  except  the  inter- 
est to  her  husband  or  his  heirs  until  she  shall  release  her  claim  to 
it  or  depart  this  life,  and  at  no  time  to  be  paid  out  without 
notice  to  the  purchaser  or  his  assignees,  owners  of  the  land. 
Moneys  awarded  to  a  wife  for  her  inchoate  right  of  dower  seem 
now  to  belong  to  her  absolutely.     Benedict  v.  Seymour,  1 1    How. 


PARTITION. 


217 


Art.  12.     Dower  Interest  and  How  Affected  by  Sale. 

176.  Where  the  present  value  of  a  contingent  or  inchoate  right  of 
dower  is  accepted,  such  value  represents  the  present  worth  of  the 
woman's  dower  right  in  the  premises,  and  the  sum  paid  or  reserved 
in  respect  to  the  same  is  her  absolute  property  without  condition 
or  contingency.  Bartlett  v.  Van  Zmidt,  4  Sandf.  Ch.  376.  The 
annuity  tables  have  furnished  the  court  with  the  means  of  ascer- 
taining the  probable  value  of  the  wife's  contingent  right  of  dower 
during  the  life  of  the  husband.  These  tables  show  the  value  of 
annuities  which  depend  not  only  on  the  continuance  of  single  lives 
of  different  ages,  but  upon  the  continuance  of  two  or  more  joint 
lives.  The  proper  rule  for  computing  the  present  value  of  the 
wife's  contingent  right  of  dower,  during  the  life  of  the  husband,  is 
to  ascertain  the  present  value  of  annuity  for  her  life,  equal  to  the 
interest  in  the  third  of  the  proceeds  of  the  estate  to  which  her 
contingent  right  of  dower  attaches,  and  then  to  deduct  from  the 
present  value  of  the  annuity  for  her  life,  the  value  of  a  similar 
annuity  depending  upon  the  joint  lives  of  herself  and  her  hus- 
band, and  the  difference  between  these  two  sums  will  be  the 
present  value  of  her  contingent  right  of  dower.  Should  it  be 
necessary,  in  case  of  an  infant  or  an  adult  wife,  for  the  court  to 
protect  her  contingent  right  of  dower,  upon  a  sale  under  a  decree 
in  partition,  where  the  value  of  the  husband's  undivided  share  of 
the  estate  was  such  as  to  render  it  proper,  the  present  value  of 
that  contingent  right  may  be  ascertained  in  that  manner,  and  the 
amount  may  be  invested  in  the  trust  company  or  savings  bank, 
in  the  name  of  the  register,  to  accumulate  for  the  joint  Hves  of 
herself  and  her  husband,  so  that  the  whole  accumulated  fund  may 
then  be  paid  over  to  her,  or  her  personal  representatives,  at  that 
time,  in  full  of  her  share  in  the  proceeds  of  the  sale.  Her  rights 
may  also  be  effectually  protected,  by  directing  the  whole  proceeds 
of  her  husband's  share  to  be  paid  over  to  him,  upon  his  giving 
security  to  the  register  or  clerk,  that  the  interest  or  income  of  one 
third  of  such  proceeds  shall  be  paid  to  his  wife  after  his  death, 
during  the  term  of  her  natural  life  if  she  survives  him.  Jackson 
V.  Edwards,  7  Paige,  408. 

In  the  course  of  the  discussion,  McKean's  Practical  Life  Tables, 
page  23,  is  cited.  This  is  an  English  work  published  in  London, 
1837,  an  American  edition  is  published  in  1876,  consisting  of  two 
volumes,  one  an  "  Exposition  of  the  practical  life  tables  with 
digest  of  the  most  approved   rules    and   formulae  illustrated   by 


:i8  PARTITION. 


Art.  12.     Dower  Interest  and  How  Affected  by  Sale. 


numerous  examples  for  the  solution  of  all  cases  occurring  in  the 
actual  daily  business  of  life  assurance,  annuities,  reversions,  etc., 
the  other  containing  very  voluminous  tables,  entitled,  "  Practical 
life  tables  by  Alexander  McKean,  digest  from  the  Northampton, 
Carlisle,  and  recent  government  observations,  containing  upwards 
of  fifteen  thousand  distinct  quantities  and  affording,  without  the 
necessity  of  reference  to  any  other  tables,  correct  data  for  the 
ready  solution  of  all  cases  occurring  in  the  actual  transaction  of 
business  in  life  assurance  and  annuities." 

In  the  previous  edition  of  this  work,  one  of  the  tables  was 
given  by  way  of  illustration.  It  is  now  omitted,  however,  as 
being  valueless,  as  it  tended  rather  to  confuse  than  aid  the  prac- 
titioner, resort  being  necessary  to  the  full  tables  for  all  computa- 
tions. The  necessity  for  these  tables  is  clearly  stated  in  "  Tables 
for  ascertaining  the  present  value  of  vested  and  contingent  rights 
of  dower,  curtesy,  annuities  and  all  other  estates  "  by  Giauque 
and  McClure,  in  which  it  is  said  :  "  The  ascertaining  of  the  present 
value  of  contingent  life  estates,  such  as  inchoate  right  of  dower 
or  a  curtesy,  requires  the  use  of  an  annuity  table  showing  the 
value  of  an  annuity  during  the  joint  continuance  of  two  lives, 
these  being  in  the  case  of  dower  or  curtesy  the  lives  of  the  hus- 
band and  wife,  and  owing  to  the  large  number  of  possible  combi- 
nations of  ages  of  these  two  lives,  these  tables  are  necessarily 
quite  voluminous  and  are  to  be  found  complete  only  in  technical 
books  that  are  scarce  and  expensive  and  which  are  practically 
inaccessible  to  most  persons  who  need  them  with  reference  to 
such  matters  as  well  as  somewhat  difficult  for  some  of  such  persons 
to  understand  at  first  sight." 

Still  another  set  of  tables  has  been  prepared  by  Eugene  Stearns, 
under  date  of  Utica,  July,  1888,  entitled  "  A  short  method  for 
the  computation  of  the  present  value  of  the  inchoate  right  of 
dower,  life  estate,  dower,  etc.,  according  to  the  Northampton 
tables."  This,  while  not  so  elaborate  and  full  as  the  others, 
seems  to  contain  all  that  is  necessary  for  the  purposes  indicated, 
and  its  object  is  stated  in  the  introductory  note  as  follows :  "  The 
need  of  a  simple  method  of  computing  the  inchoate  right  of  dower 
which  should  comply  with  the  rules  laid  down  in  Jackson  v. 
Edwards,  7  Paige,  386,  and  give  an  accurate  result  at  less  expense 
of  labor  and  time,  has  long  impressed  itself  upon  the  attention  of 
the  author.     The  method  adopted  in  the  following  tables  it  is 


PARTITION.  219 


Art.  12.     Dower  Interest  and  How  Affected  by  Sale. 


confidently  believed  fully  meets  the  requirements  in  these 
respects."  The  tables  are  entitled  "  Tables  .showing  the  present 
value  of  a  wife's  inchoate  right  of  dower  in  an  estate  of  one  dollar 
at  any  given  ages  between  fourteen  and  seventy-two,  calculated 
at  five  per  cent. 

Banks  V.  Banks,  2  S.  C.  483,  seems  to  be  obsolete  by  reason  of 
the  fact  that  the  portion  of  the  rule  there  decided  to  be  in  conflict 
with  the  Revised  Statutes  does  not  appear  in  the  rule  as  it  now 
.stands,  it  evidently  having  been  amended  by  dropping  the  obnox- 
ious provision. 

The  old  chancery  rule  providing  for  the  investment  of  chancery 
funds  is  still  in  force.  Chesterma?i  v.  Eyland,  81  N.  Y.  398, 
modified  by  subsequent  rules. 

Rule  68.  Payment  of  money  into  court ;  designation  of  trust  companies,  etc. 

When  the  court  shall  make  special  directions  for  the  payment  or  investment 
of  money  pursuant  to  sections  744,  745  and  747  of  the  Code,  it  must  require  such 
money  to  be  paid  to  or  invested  by  such  trust  company  as  has  heretofore  been 
designated  by  the  Supreme  Court,  or  as  shall  hereafter  be  designated  by  the  ap" 
pellate  division  for  that  purpose. 

Any  trust  company  organized  under  the  laws  of  this  State  may  apply  to  the 
appellate  division  of  the  Supreme  Court,  in  the  department  in  which  its  princi- 
pal office  is  situated,  to  be  designated  as  a  deposit  bank  for  such  moneys.  Upon 
such  applications  the  court  shall  direct  a  reference  to  ascertain  the  condition  of 
the  trust  company  making  such  application;  and  the  referee  so  appointed  shall 
examine  the  securities  of  the  company  and  shall  report  to  the  court  its  financial 
condition  and  the  general  nature  of  the  business  transacted  by  it,  specifying  in 
such  report  the  amount  of  all  obligations  or  liabilities  of  the  company,  the 
amount  of  its  capital  stock  outstanding,  the  general  nature  of  its  investment 
and  the  amount  of  its  surplus.  If  it  shall  appear  from  such  report  to  the  satis- 
faction of  the  court  that  moneys  deposited  in  such  company  would  be  safe  and 
the  company  should  be  designated  as  such  depository,  the  court  may  in  its  dis- 
cretion designate  such  company  as  a  deposit  bank  for  such  moneys.  The  ex- 
penses of  such  reference  shall  be  paid  by  the  corporation  making  the  applica- 
tion, and  before  ordering  the  reference  the  court  may  require  a  sufficient  sum  to 
pay  such  expenses  to  be  deposited  in  court.  Whenever,  by  order  or  judgment, 
moneys  are  to  be  brought  into  court,  it  shall  be  the  duty  of  the  attorney,  on 
whose  motion  the  same  are  to  be  so  brought  into  court,  to  file  with  the  county 
treasurer,  or  with  the  bank  or  company  to  whom  the  same  are  to  be  paid, 
according  to  the  said  order  or  judgment,  or  according  to  the  practice  of  the 
court,  a  certified  copy  of  said  order  or  judgment.  The  court  may,  however, 
direct  that  only  a  specified  part  of  the  same  need  be  filed,  which  part  shall  be 
suiTlcient  to  show  to  whom  the  moneys  so  brought  into  court  belong. 

In  all  cr.scs  provided  for  by  this  rule  arising  in  the  city  and  county  of  New 
York,  the  chamberlain  of  said  city  shall  be  the  officer  indicated  by  the  words 
*'  county  treasurer." 


220 


PARTITION. 


Art.  13.     Sale,  Report  of  Sale  and  Confirmation,  Resale. 

Chancery  Rule  180.  Investment  of  funds  paid  into  court. 

"  Whenever  a  party,  as  tenant  for  life,  or  by  the  curtesy  or  in  dower,  is  entitled 
to  the  annual  interest  or  income  of  any  sum  paid  into  court  and  invested  in  per- 
manent securities,  such  parties  shall  be  charged  with  the  expense  of  investing  such 
sum  and  of  receiving  and  paying  over  the  interest  or  income  thereof;  but  if  such 
party  is  willing  and  consents  to  accept  a  gross  sum  in  lieu  of  such  annual  inter- 
est or  income  for  life,  the  same  shall  be  estimated  according  to  the  then  value 
of  an  annuity  of  six  per  cent  on  the  principal  sum  during  the  probable  life  of 
such  person,  according  to  the  Portsmouth  or  Northampton  Tables.  And  where 
money  belonging  to  an  infant,  or  an  absentee,  or  to  an  unknown  owner,  is 
brought  into  court  for  his  benefit  under  a  final  decree  in  partition,  if  no  direction 
for  the  investment  thereof  is  contained  in  the  decree;  and  the  money  is  not 
applied  for  within  six  months  thereafter,  it  shall  be  the  duty  of  the  register, 
assistant  register  or  clerk  with  whom  the  same  is  deposited,  and  without  any 
special  order  for  that  purpose,  to  cause  it  to  be  invested  in  the  public  stocks,  or 
other  permanent  securities,  or  in  the  New  York  Life  Insurance  and  Trust  Com- 
pany, to  accumulate  for  the  benefit  of  the  party  entitled  thereto. 

"  He  may  also  in  like  manner  reinvest  the  income  of  such  money  from  time 
to  time,  without  any  special  order  for  that  purpose,  whenever,  in  his  opinion, 
the  amount  of  such  income  is  sufficient  to  render  an  investment  thereof  proper 
and  beneficial  to  the  person  interested  therein. 

"  And  where  money  is  brought  into  court  upon  the  sale  of  infant's  estate  by  a 
special  guardian,  if  the  infant  will  not  arrive  of  age  within  six  months  then 
after  it  shall  be  the  duty  of  the  register,  assistant  register  or  clerk  to  whose 
credit  such  money  is  deposited  in  bank,  without  any  special  order  of  the  court 
for  that  purpose,  to  deposit  such  money  in  the  trust  company,  to  accumulate  or 
to  invest  the  same  in  the  public  stocks  of  this  State  or  of  the  United  States,  or 
to  invest  it  upon  bond  and  mortgage,  upon  unincumbered  real  estate  of  double 
the  value,  exclusive  of  buildings,  payable  when  the  infant  becomes  of  age,  or 
sooner  if  required,  to  be  paid  by  the  order  of  the  court,  with  interest,  to  be  paid 
annually  or  semi-annually,  and  to  reinvest  the  same  from  time  to  time  as  above 
directed." 


ARTICLE  XIII. 
Sale,  Report  of  Sale  and  Confirmation,  Resale. 


§  IS76. 


Sub.  I.  Report  of  sale  and  confirmation.     §  1576. 
2.  Purchaser,  vs^hen  compelled  to  take  title. 


1576. 


Sub.  I.  Report  of  Sale  and  Confirmation. 
§  1576.  Report  of  sale. 

Immediately  after  completing  the  sale,  the  officer  making  it  must  file  with  the 
clerk  his  report  thereof  under  oath,  containing  a  description  of  each  parcel  sold, 
the  name  of  the  purchaser  thereof,  and  the  price  at  which  it  was  sold. 

The  method  of  conducting  the  sale  of  real  estate  is  treated  under 
§§  1677,  and  1678  where  the  authorities  are  collated  under  title 
"  Sale  of  real  estate,"  also  rules  relative  to  resale  and  distribu- 
tion of  proceeds  of  sale. 


PARTITION.  221 


Art.  13.     Sale,  Report  of  Sale  and  Confirmation,  Resale. 

The  purpose  of  the  statutory  rule  making  a  final  judgment  in 
partition  conclusive,  is  to  give  unqualified  support  to  the  judg- 
ment and  confirmation.  Prior  v.  Prior,  18  St.  Rep.  566,  s.  C.  15 
Civ.  Pro.  R.  436,  49  Hun,  502, 

The  title  of  a  purchaser  at  a  partition  sale  is  good  not  only  as 
against  the  parties  to  the  action  and  their  representatives,  but 
against  any  person  claiming  from  or  under  such  party  by  title 
accruing  after  the  filing  of  lis  pendents.  Brooks  v.  Ackerly,  16  St. 
Rep.  656. 

Where  the  land  was  in  two  parcels,  but  would  sell  to  better 
advantage  in  such  parcels  than  if  divided  between  the  co-tenants, 
it  was  held  that  it  should  be  sold,  although  one  of  the  parties  de- 
sired to  have  the  share  set  off  to  retain  for  an  advance  in  price, 
since,  as  her  interest  was  greater  than  the  value  of  the  smaller  lot, 
she  could  buy  it  in.  Coster  v.  Coster,  50  St.  Rep.  880,  21  Supp. 
203. 

A  deed  from  the  holder  of  an  outstanding  interest,  to  a  defend- 
ant in  partition,  executed  subsequently  to  the  decree,  will  not 
vest  such  interest  in  the  property  in  the  purchaser  at  a  partition 
sale.     Bogcrt  v.  Bogert,  6  N.  Y.  Supp.  299. 

A  person  in  possession  of  premises  claiming  a  right  for  a  term 
of  years,  is  not  affected  by  the  judgment  in  an  action  brought  after 
the  commencement  of  such  term  for  partition,  to  which  he  is  not  a 
party.     Moorcs  v.  Townshend,  54  Supr.Ct.  245. 

The  expenses  of  extra  advertising  by  a  referee,  not  previously 
authorized  by  the  court,  cannot  be  allowed  from  the  proceeds  of 
the  sale.       Stewart  v.  Paton,  23  Civ.  Pro.  R.  286,  29  Supp.  770. 

There  is  no  authority  for  an  order  before  the  sale,  authorizing 
the  referee  to  do  extra  advertising.  Baldwin  v.  Baldivin,  23  Civ. 
Pro.  R.  268,  note. 

The  publication  of  notice  by  referee  in  partition  in  one  news- 
paper is  sufficient  under  §  1562,  where  the  property  is  all  within 
one  county.  Connor  v.  Connor,  36  St.  Rep.  823,  20  Civ.  Pro.  R. 
308,  13  Supp.  402. 

Where,  the  plaintiff,  with  the  knowledge  and  approval  of  the 
other  parties,  took  proceedings  to  compel  the  purchaser  of  the 
property  to  take  title,  in  which  he  was  successful,  though  they  did 
not  agree  to  reimburse  the  expenses ;  Jicld,  he  was  not  entitled 
to  an  order  of  the  Special  Term  directing  the  referee  and  receiver 
in  the  partition  suit  to  pay  the  amount  out  of  the  fund,  the  court 


222 


PARTITION. 


Art.  13.     Sale,  Report  of  Sale  and  Confirmation,  Resale. 

having  no  authority  to  grant   it.     Roarty  v.  McDermott,  89  Hun, 
511. 

Where  the  referee  in  partition  paid  the  costs  awarded  in  an 
interlocutory  judgment,  under  an  agreement  that  they  should  be 
repaid  if  the  purchaser  refused  to  complete  the  purchase  and  the 
referee  was  compelled  to  return  the  deposit  of  the  purchaser,  it 
was  held  that  he  could  in  an  action  recover  his  fees  and  disburse- 
ments from  the  plaintiff,  but  not  the  costs  so  paid,  since  the  in- 
sertion of  the  costs  in  the  interlocutory  judgment  was  not 
authorized  by  law.  Flynn  v.  Kennedy,  62  Hun,  26,  41  St.  Rep. 
359,  16  Supp.  361. 

Notice  of  Sale  in  Partition. 

SUPREME  COURT  — Ulster  County. 


Sarah  A.  Kelly 
agst. 

Sarah  Ann  Van  Nostrand,  Mary  Wheeler  and  George 
Wheeler,  her  husband;  Caroline  Lyons  and  John 
Lyons,  her  husband;  Sarah  Hunt  and  Lorenzo 
Hunt,  her  husband;  Annette  Ennist  and  Alonzo 
Ennist,  her  husband,  Frank  Van  Nostrand,  Elias 
T.  Van  Aken,  an  infant,  by  Nicholas  E.  Brod- 
head,  his  guardian  ad  litem ;  James  E.  Ostrander, 
individually  and  as  administrator  of  the  goods, 
chattels  and  credits  of  Elias  T.  Van  Nostrand, 
deceased,  and  Virginia  E.  Ostrander,  his  wife; 
Alfred  Van  Nostrand,  individually  and  as  ad- 
ministrator of  the  goods,  chattels  and  credits  of 
Elias  T.  Van  Nostrand,  deceased,  and  Cathalina 
Van  Nostrand,  his  wife,  and  John  B.  Kelly. 


In  pursuance  of  a  judgment  in  the  above-entitled  action  of  par- 
tition, entered  in  the  ofifice  of  the  clerk  of  the  County  of  Ulster,  on 
the  9th  day  of  June,  1888,  I,  the  undersigned  referee,  in  and  by 
said  judgment  for  that  purpose  appointed,  will  sell  at  public  auction 
at  the  front  door  of  the  court  house  in  the  City  of  Kingston,  Ulster 
County,  New  York,  on  Saturday,  the  7th  day  of  July,  1888,  at  ten 
o'clock  A.  M.,  the  lands  and  premises  in  said  judgment  directed  to 
be  sold  and  therein  described  as  follows:  (Here  insert  description.) 
Dated  June  9,  1888.  JOHN    W.    SEARING, 

Referee. 
JAMES    A.    BETTS, 

Plaintiff's  Attorney. 
WILLIAM    T  .  HOLT, 

Attorney  for  some  Defendants. 


PARTITION.  223 


Art.  13.     Sale,  Report  of  Sale  and  Confirmation,  Resale. 

Precedent  for  Notice  of  Application  for  Order  Confirming 
Report  of  Sale  and  for  Final  Judgment. 

SUPREME  COURT  — Albany  County. 


JOHN  W.  McHARG,  et  al, 

agst. 
RUFUS  K.   McHARG,  et  al. 


You  will  please  take  notice  that  upon  the  referee's  report  of  sale 
in  this  action,  which  was  filed  in  the  Albany  County  Clerk's  office 
on  the  ist  day  of  June,  1892,  a  copy  of  which  is  herewith  served 
upon  you,  and  upon  all  papers  heretofore  served  and  proceedings 
had,  the  Supreme  Court  of  the  State  of  New  York  will  be  moved  at 
a  Special  Term  thereof  to  be  held  at  the  City  Hall  in  the  City  of 
Albany  on  the  3rd  day  of  June,  1892,  at  the  opening  of  the  court  on 
that  day  or  as  soon  thereafter  as  counsel  can  be  heard,  for  an  order 
confirming  said  referee's  report  of  sale  and  for  a  final  judgment  in 
the  above-entitled  action  and  for  an  extra  allowance  to  the  plaintiff 
and  for  such  other  and  further  relief  in  the  premises  as  may  be 
proper. 

MARCUS   T.    HUN, 
Attorney  for  Plaintiff. 
To 

JOHN  J.  KINNEY,  ESQ., 

Attorney  for  Evelyn  N.  Post,  et  al, 

FRANK   W.    STEVENS,  ESQ., 

Attorney  for  Robert  N.  Marvin  et  al, 

JAMES    FENIMORE    COOPER, 

Guardian  ad  litem  for  Katharine  F.  Clarke,  and 

HON.    SIMON   W.  ROSENDALE,  Attorney-General, 

Attorney  for  the  People  of  the  State  of  New  York. 


224 


PARTITION. 


Art.  13.     Sale,  Report  of  Sale  and  Confirmation,  Resale. 


Precedent   for  Referee's  Report  of  Sale. 

SUPREME  COURT  — Albany  County. 


1- 


John  W.   McHarg  and   Harriette   D.    McHarg,  his 
wife,   Plaintiffs, 

agst. 

Rufus  K.  McHarg  and  Harriet  S.  McHarg,  his 
wife;  Charles  K.  McHarg  and  Harriet  P.  McHarg, 
his  wife;  William  N.  McHarg  and  Selima  S. 
McHarg,  his  wife;  Henry  K.  McHarg  and  Frede- 
ricka  B.  McHarg,  his  wife;  Franklin  Clarke  and 
Louie  O.  Clarke,  his  wife;  Selden  E.  Marvin  and 
Katharine  L.  Marvin,  his  wife;  Robert  N.  Marvin 
and  Elizabeth  Marvin,  his  wife;  Richard  P. 
Marvin,  Jr.,  William  Donaldson,  John  M.  W^ood, 
David  F.  Cassort  and  Flora  A.  Cassort,  his  wife; 
Sophia  K.  Porter  and  Horace  Porter,  her  husband, 
et  al,  Defendants. 


To  the  Supreme  Court  of  the  State  of  New  York  : 

I,  William  Bayard  Van  Rensselaer,  the  referee  appointed  by  the 
interlocutory  judgment  entered  in  the  above-entitled  action  on  the 
29th  day  of  March,  1892,  to  sell  the  premises  described  in  the  in- 
terlocutory judgment  herein,  do  respectfully  report: 

That  I  advertised  said  premises  to  be  sold  by  me  at  public  auction 
at  the  main  entrance  and  hallway  of  the  City  Hall  in  the  City  and 
County  of  Albany  and  State  of  New  York  at  twelve  o'clock  noon  on 
the  25th  day  of  April,  1892. 

That  previous  to  said  sale  I  caused  notice  thereof  to  be  publicly 
advertised  for  three  weeks  successively,  as  follows:  By  causing  a 
copy  of  such  notice  to  be  printed  twice  on  each  week  during  the 
three  weeks  immediately  preceding  such  sale,  in  a  public  newspaper 
printed  in  said  County  of  Albany,  New  York,  to  wit:  The  Argus, 
printed  at  the  City  of  Albany  in  said  county,  which  notice  contained 
a  description  of  said  mortgaged  premises. 

I  do  further  report  that  on  the  said  25th  day  of  April,  1892,  the 
day  on  which  said  premises  were  so  advertised  to  be  sold  as  afore- 
said, I  attended  at  the  time  and  place  fixed  for  said  sale,  and  ex- 
posed said  premises  for  sale  at  public  auction  to  the  highest  bidder, 
and  that  the  said  premises  were  then  and  there  fairly  struck  off  to 
Henry  M.  Kramrath  for  the  sum  of  three  thousand  dollars,  he  being 
the  highest  bidder  therefor  and  that  being  the  highest  sum  bidden 
for  the  same. 

That  the  terms  and  conditions  of  said  sale  were  reduced  to  writing 
and  made  known  to  the  persons  attending  such  sale  previous 
thereto.     That  the  said  Henry  M.  Kramrath  signed  the  written  con- 


PARTITION.  225 


Art.  13.     Sale,  Report  of  Sale  and  Confirmation,  Resale. 


ditions  of  sale  above  mentioned,  and  that  since  said  date  he  has  paid 
to  me  the  full  amount  of  the  purchase  price,  and  is  entitled  to  a 
deed  when  said  sale  is  confirmed  by  the  court. 

That  the  plaintiff,  John  W.  McHarg,  has  accounted  to  me  for  all 
the  rents  received  by  him  since  the  death  of  Jane  Barker,  the  tes- 
tatrix, and  has  paid  over  to  me  the  sum  of  one  hundred  and  eighty 
dollars  and  seventy-three  cents  ($180.73),  being  the  net  amount  of 
rents  received  by  him,  and  which  should  be  distributed  by  the  judg- 
ment herein. 

I  do  further  report  that  the  said  John  W.  McHarg  should  be  dis- 
charged from  all  liability  and  accountability  for  his  acts  in  receiving 
the  rents  and  profits  of  the  premises  hereinafter  described  since  the 
death  of  the  said  Jane  Barker. 

I  do  further  report  that  the  plaintiff  Harriette  D.  McHarg  has 
released  to  her  husband,  the  plaintiff  John  W.  McHarg,  her  inchoate 
right  of  dower  in  the  property  hereinafter  described,  but  that  none 
of  the  wives  of  the  defendants  have  so  released  their  dower  interest. 

The  premises  are  described  as  follows: 

(Insert  description.) 

All  of  which  IS  respectfully  submitted. 

Dated,  Albany,  May  31st,  1892. 

WILLIAM    BAYARD    VAN    RENSSELAER, 

Referee. 

Sub.  2.   Purchaser,  when  Compelled  to  Take  Title. 

An  order  to  compel  a  purchaser  in  partition  to  take  title  was 
refused  where  he  claimed  that  the  land  was  subject  to  the  lien  of 
the  legacies.  As  the  legatees  were  not  parties  to  the  suit  therein, 
their  rights  could  not  be  adjudicated  and  the  objection  was  not 
frivolous.  Jordan  v.  Poillon,  yj  N.  Y.  518.  Where  a  mortgagee  was 
made  a  party  in  an  action  of  partition  and  litigated  the  question  as 
to  the  validity  of  the  mortgage  therein,  held,  that  the  court  acquired 
jurisdiction  to  adjudicate  the  question,  although  defendant  claimed, 
as  a  matter  of  law,  that  affirmative  relief  could  not  be  given 
against  him  in  such  an  action.  Barnard  v.  Ondcrdonk,  98  N.  Y. 
158.  A  judgment  in  partition  of  land  held  by  parties,  which 
directs  a  partition  by  the  commissioners,  and  charges  a  mortgage 
held  by  one  party  covering  the  undivided  interest  of  the  other 
upon  the  separate  share  of  the  latter,  is  not,  where  no  decision  has 
already  been  made,  a  bar  to  the  foreclosure  of  the  mortgage. 
Rcidv.  Gardner,  65  N.  Y.  578. 

A  sale  in  a  partition  of  lands  did  not  cut  off   the  lien  of  the 

creditor  of  the  ancestor.    Mead  v.  Jenkins,  27  Hun,  570.     A  sale  in 

an  action  of  partition  which  is  confirmed  by  the  final  judgment  is 

binding  and  conclusive  on  all  the  parties  to  the  action,  who  have 

[Spkcial  Actions  —  15.] 


226  PARTITION. 


Art.  13.     Sale,  Report  of  Sale  and  Confirmation,  Resale. 


duly  appeared  or  been  served  in  the  action,  and  upon  their  legal 
representatives.  Although  every  purchaser  at  the  partition  sale  is 
entitled  to  a  title  which  shall  be  reasonably  free  from  dispute, 
yet,  where  a  duly  appointed  guardian  ad  litem,  of  an  infant  defend- 
ant neglects  to  object  to  the  fact  that  the  action  is  improperly 
brought  by  the  tenant  by  the  curtesy,  a  judgment  and  sale  therein 
is  not  rendered  invalid.  An  objection  by  a  purchaser  that  the 
property  is  subject  to  sale  for  the  debts  of  decedent,  is  suffi- 
ciently answered  by  showing  that  such  decedent  left  sufificient 
personal  property  to  pay  all  claims  against  the  estate.  Reed  v; 
Reed,  13  Civ.  Pro.  R.  109,  46  Hun,  212,  affirmed  107  N.  Y.  545. 
This  case  was  followed  in  Prior  v.  Prior,  49  Hun,  502.  An  adjudi- 
cation in  an  action  of  partition  that  a  particular  conveyance  is  only 
a  mortgage,  is  binding  on  all  the  parties  to  the  action.  Manolt  v. 
Petrie^  65  How.  206.  A  judgment  in  partition  may  be  vacated 
like  other  judgments.  Where  the  title  to  a  portion  set  off  to  one 
party  failed,  it  was  held  that  the  judgment  might  be  opened  and 
a  new  partition  ordered,  but  in  view  of  the  lapse  of  ten  years  and 
the  complicated  nature  of  the  case,  the  parties  were  left  to  a  new 
action.     Marvin  v.  Marvin,  i  Abb.  N.  C.  372. 

See  cases  cited  under  §  1678. 

Where  the  purchaser  at  a  sale  asks  to  be  relieved  because  the 
published  notice  to  lienors  gave  the  names  only  of  two  share-own- 
ers, and  judgment  and  mortgage  creditors  of  one  of  them  are  not 
co-parties,  and  it  appeared  that  such  creditors  appeared  and 
proved  their  claims  before  the  referee,  and  that  the  referee  found 
no  lien  against  the  share-owners  not  named,  it  was  held  objection 
to  the  title  could  not  be  upheld.  Doremus  v.  Doremus,  66  Hun, 
III,  49  St.  Rep.  800,  21  Supp.  13. 

Where  the  records  fails  to  show  that  persons  who  would  be  neces- 
sary parties,  if  capable  of  taking  an  interest  in  the  property  but 
were  not  joined,  were  incapable  of  so  taking,  and  therefore  pro- 
perly omitted,  such  omission  renders  a  title  doubtful,  within 
the  rule  that  the  purchaser  will  not  be  required  to  take  a  doubtful 
title.      Toole  M.  Toole,  112  N.  Y.  333. 

Where  a  resale  was  ordered  and  the  order  amended  by  striking 
out  a  provision  that  the  purchaser  at  the  first  sale  and  the  plain- 
tiff should  be  liable  for  the  deficiency  on  the  resale;  held,  it  was 
error  on  the  part  of  the  referee  to  refuse  to  receive  his  bid  on  the 
resale  or  to  allow  the  money  paid  on  the  first  sale  to  be  applied 


PARTITION.  227 


Art.  13.     Sale,  Report  of  Sale  and  Confirmation,  Resale. 

on  the  second,  and  that  a  third  sale  should  be  ordered.     Fay  v. 
Fay,  69  Hun,  149  and  150,  52  St.  Rep.  610,  23  Supp.  408. 

A  purchaser  at  a  partition  sale  is  not  bound  to  take  the  title 
unless  he  can  be  put  in  possession  under  the  decree  of  sale.  Kapp 
V.  Kapp,  15  St.  Rep.  967. 

One  of  the  tenants  by  the  entirety,  who  is  not  a  party  to  an 
action  of  partition,  cannot  be  put  out  of  possession  under  the 
judgment.      O' Conor  v.  McMahon,  26  St.  Rep.  596. 

Lapse  of  time  in  completing  title  may  relieve  a  purchaser  from 
his  bid.  Rice  v.  Barrett,  99  N.  Y.  404,  followed  Darrow  v.  Horton, 
6  St.  Rep.  718.  SeQ,  however,  Merchants'  Bankv.  Thompson,  55 
N.  Y.  7;  Frost  v.  Hirschberg,  17  Weekly  Dig.  224. 

But  the  purchaser  makes  his  bid  upon  the  implied  warranty 
that  the  title  will  be  marketable.  Flemings.  Bitrnhain^  100  N.  Y.  i ; 
Shriver  v.  Shriver,  86  N.  Y.  575  ;  Jordan  v.  Poillon,  jy  N.Y.  518. 

He  is  entitled  to  a  merchantable  title.  Mead  v.  Mead,  24  St. 
Rep.  455;  Herring  v.  Berrian,  8  St.  Rep.  124. 

Where  the  title  can  be  cured,  the  purchaser  will  be  obliged  to 
complete  his  purchase.  Hellrigelv.  Manning,  97  N.  Y.  56;  Mur- 
ray V.  Harway,  56  N.  Y.  337. 

A  purchaser  at  a  partition  sale  is  entitled  to  demand  a  market- 
able title,  one  which  is  free  from  reasonable  doubt  as  to  its  vali- 
dity. If  an  essential  act  has  been  omitted  or  unseasonably  taken 
in  the  action,  which  may  render  the  judgment  ineffectual  as  to  any 
of  the  parties  in  interest,  it  is  the  duty  of  the  plaintiff  to  take  the 
proper  steps  for  curing  the  defects  before  he  can  be  held  upon  a 
motion  to  compel  the  purchaser  to  complete  his  purchase.  Cronter 
V.  Crouter,  133  N.  Y.  55. 

The  purchaser  will  be  relieved  if  after  the  date  of  sale  and  be- 
fore the  delivery  of  the  property,  it  has  been  materially  injured. 
The  Mutual  Life  Ins.  Co.  v.  BaleJi,  4  Abb.  N.  C.  200. 

A  purchaser  will  not  be  relieved  because  the  action  was  brought 
by  tenant  by  curtesy  or  on  the  ground  that  the  guardian  ad  litem 
of  the  infant  failed  to  file  a  bond  for  each  of  the  infant  parties. 
Tilton  V.  Vail,  25  St.  Rep.  212;  Reedw.  Reed,  46  Hun,  212. 

Where  the  liability  of  a  person  interested,  who  was  not  a  party, 
being  alive  or  leaving  a  widow  or  heirs,  is  a  remote  and  improba- 
ble contingency,  it  is  a  proper  exercise  of  discretion  to  compel  a 
purchaser  to  complete  the  sale.  Cambrelung  v.  Purton,  36  St. 
Rep.   190. 


228  PARTITION. 


Art.  13.     Sale,  Report  of  Sale  and  Confirmation,  Resale. 

Where  every  living  person  who  had  any  interest,  vested  or  con- 
tingent, in  the  property,  were  parties  to  the  suit,  it  was  held  that 
after-born  children  who  might  have  an  interest  in  the  real  estate 
sold  under  it,  would  be  concluded  by  the  judgment,  and  could 
not  successfully  assail  the  title  of  a  purchaser  under  it.  Kirk  \. 
Kirk,  137  N.  Y.  510,  51  St.  Rep.  267. 

The  rule  is  not  absolute  that  a  disputable  fact  supposed  to 
cloud  the  title,  which  is  not  determined  by  the  judgment  in  an 
action  of  partition,  is  in  every  case  a  bar  to  the  enforcement  of 
the  sale  under  the  judgment.  If  the  existence  of  the  alleged  fact 
is  a  possibility  merely,  or  the  alleged  outstanding  right  a  very 
improbable  and  remote  contingency,  the  court  may,  in  its  discre- 
tion, compel  the  purchaser  to  complete  his  purchase.  Ferry  v. 
Sampson,  112  N.  Y.  415.  To  the  same  effect,  Cambrcling  v. 
Piirton,  34  St.  Rep.  908.  But  where  the  judgment  did  not  suffi- 
ciently or  conclusively,  as  against  the  heirs  not  made  parties, 
establish  their  incapacity  to  take  an  interest,  the  purchaser  was 
relieved  from  his  purchase.      Toole  v.   Toole,  112  N.  Y.  333. 

The  title  of  a  purchaser  is  not  affected  unless  the  judgment 
rendered  is  actually  set  aside.  The  fact  that  the  judgment  of  sale 
might  have  been  set  aside  as  irregular,  is  not  a  ground  for  relief, 
if  the  court  had  jurisdiction  of  the  subject-matter  and  had  power 
to  render  the  judgment.      DeForest  v.  Farley^  62  N.  Y.  628. 

Nor  will  he  be  relieved  where  he  gets  substantially  what  he 
contracts  for  and  there  are  only  apparent  defects  in  the  title,  of 
which  he  had  due  notice,  and  in  reference  to  which  he  may  be 
supposed  to  have  made  his  bid.  Riggcs  v.  Piirsell,  66  N.  Y.  193  ; 
CoatesM.Fairehild,  14  Week.  Dig.  189;  Mott  v.  Mott,6^  N.  Y.  246. 

Precedent  for  Notice  of  Motion  on  Application  to  be  Relieved 

from  Purchase. 

SUPREME  COURT  — City  and  County  of  New  York. 


FRANCES  NATHAN  and  Others,  Plain- 
tiffs, 

agst. 

EDMUND  HENDRICKS  and  Others,  De- 
fendants. 


\  147  N.  Y.  348. 


You  will  please  to  take  notice  that  Morris  B.  Baer,  the  purchaser 
at  the  sale  on  April  2d,  1895,  of  the  premises  described  in  the  in- 


PARTITION. 


229 


Art.  13.     Sale,  Report  of  Sale  and  Confirmation,  Resale. 


ter.ocutory  judgment  entered  in  this  action  dated  March  6th,  1895, 
will  apply  to  this  court  at  Special  Term  thereof  to  be  held  at  the 
Chambers  in  the  County  Court  House  in  the  City  of  New  York  on 
Monday,  the  13th  day  of  May,  1895,  at  10:30  o'clock  a.  m.,  upon  all 
the  proceedings  herein  and  upon  tlie  annexed  petition  made  by  him 
dated  May  8th,  1895,  for  an  order  relieving  him  from  his  purchase 
and  directing  the  return  to  him  by  the  referee  herein  of  the  sum  of 
$4,060  paid  on  account  of  the  purchase  price  of  such  sale  and  also 
the  payment  to  him  by  the  plaintiffs  herein  of  interest  on  the  sum 
so  paid,  together  with  the  sum  of  $17,  being  the  auctioneer's  fee 
paid  at  said  sale,  and  $375.50,  being  the  expenses  incurred  by  him 
for  counsel  fees  and  searches  in  the  examination  of  the  title  to  said 
premises,  and  also  for  such  other  or  further  relief  and  order  as  may 
be  proper,  besides  the  costs  of  this  motion. 

Dated  May  8th,  1895. 

Yours,  etc., 

TOWNSEND    WANDELL, 
Attorney  for  Morris  B.  Baer,  the  purchaser. 
To 

WILLIAM    M.    HOES,  ESQ., 

Referee. 

EDGAR    J.    NATHAN,  ESQ., 

Plaintiff's  Attorney. 

Precedent  for  Petition  to  be  Relieved  from  Purchase. 

SUPREME  COURT  — City  and  County  of  New  York. 


FRANCES  NATHAN  and  Others,  Plain- 
tiffs, 

agst. 

EDMUND  HENDRICKS  and  Others,   De- 
fendants. 


)■  147  N.  Y.  348. 


To  the  Supreme  Court  of  the  State  of  Neiv  York  : 
The  petition  of  Morris  B.  Baer  respectfully  shows: 
That  on  the  second  day  of  April,  1895,  the  premises  Number  27 
Mercer  street,  particularly  described  in  the  interlocutory  judgment 
of  partition  and  sale  in  this  action  dated  March  6th,  1895,  vvere  put 
up  for  sale  by  William  M.  Hoes,  Esq.,  the  referee  therein  named, 
at  the  New  York  Real  Estate  salesroom.  No.  in  Broadway,  in  the 
City  of  New  York,  pursuant  to  said  judgment  and  of  the  notice  of 
sale  given  by  virtue  thereof,  and  the  said  premises  were  thereupon 
struck  off  to  your  petitioner,  the  highest  bidder  at  such  sale,  for  the 
sum  of  $40,600,  and  that  pursuant  to  the  terms  of  such  sale,  your 
petitioner  paid  the  referee  $4,060,  being  ten  per  cent  of  the  sum 
bid,  and  $17  to  Peter  F.  Meyer,  the  auctioneer,  for  his  charges  in 
conducting  the  sale.     That  your  petitioner  thereupon  retained  Town- 


230  PARTITION. 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


send  Wandell  as  his  attorney  to  examine  the  title  to  said  premises, 
and  was  subsequently  informed  and  advised  by  him  that  the  title  to 
said  premises  is  defective  and  unmarketable,  and  pursuant  to  his 
advice  and  because  of  the  defects  in  said  title,  your  petitioner  caused 
the  objections  to  the  title  to  said  premises  to  be  duly  formulated 
and  a  copy  thereof  to  be  served  on  the  said  referee  and  on  the 
plaintiff's  attorney  on  April  29,  1895,  and  that  annexed  hereto  as 
a  part  hereof,  marked  "  Exhibit  A,"  is  a  copy  of  said  objections. 

Your  petitioner  declares,  upon  information  and  belief,  that  the 
facts  stated  in  said  objections  as  the  grounds  for  refusing  to  take 
the  title  to  said  premises  are  true.  That,  as  your  petitioner  is  ad- 
vised and  believes,  the  title  to  said  premises  which  may  be  conveyed 
by  the  referee  herein  is  not  good  or  marketable. 

That  your  petitioner  has  incurred  an  expense  of  $375-5°  ^o^  coun- 
sel fees  and  searches  in  the  examination  of  said  title. 

Wherefore  your  petitioner  prays  that  he  may  be  relieved  from  his 
purchase  and  that  an  order  be  made  and  entered  herein  and  direct- 
ing the  referee  to  reimburse  your  petitioner  the  amount  paid  by 
him  on  account  of  the  purchase  price,  to  wit:  requiring  the  plaintiffs 
to  pay  your  petitioner  interest  on  the  sum  so  paid,  together  with 
$4,060,  and  also  $17,  the  amount  paid  for  auctioneer's  fees,  and 
$375.50  expenses  incurred  for  the  examination  of  the  title  to  said 
premises,  and  that  he  may  have  other  order  or  relief  as  may  be 
proper. 

Dated,  May  8th,  1895. 

MORRIS    B.    BAER, 


Petitioner. 


ARTICLE  XIV. 


Final  Judgment,  its  Contents  and  Effect.    §§  1577,  1578, 
1579,  1580,  1581,  1582,  1583,  1584,  1585,  1586,  1589,  1595. 

Sub.  I.  Contents  OF  FINAL  JUDGMENT.     §§  1577,  1578,  1582-1586,  1595. 

2.  Distribution  of  proceeds  of  sale.     §§  1580,  1581. 

3.  Rents  may  be  adjusted.     §  1589. 

4.  Costs.     §  1579. 

Sub.  I.  Contents  OF  Final  Judgment.     §§  1577,  1578,  1582-1586, 

1595- 

^  1577.   Final  judgment ;  effect  thereof. 

If  the  sale  is  confirmed  by  the  court,  a  final  judgment  must  be  entered,  con- 
firming it  accordingly;  directing  the  officer  making  it  to  execute  the  proper 
conveyances,  and  take  the  proper  securities  pursuant  to  the  sale;  and  also  di- 
recting concerning  the  application  of  the  proceeds  of  the  sale.  Such  a  final 
judgment  is  binding  and  conclusive  upon  the  same  persons,  upon  whom  a  final 
judgment  for  partition  is  made  binding  and  conclusive  by  section  1557  of  this 
acf  and  it  effectually  bars  each  of  those  persons,  who  is  not  a  purchaser  at  the 
sale,  from  all  right,  title  and  interest  in  the  property  sold. 


PARTITION.  231 


Art.  14.      Final  Judgment,  its  Contents  and  Effect. 


§1578.  [Am'd,  1883.]     Id.;  eflfect  thereof  upon  incumbrancers. 

Such  a  final  judgment  is  also  a  bar  against  each  person,  not  a  party,  who  has,  at 
the  time  when  it  is  rendered,  a  general  lien  by  judgment  or  decree  on  the  un- 
divided share  or  interest  of  a  party,  if  notice  was  given  to  appear  before  the 
referee,  and  make  proof  of  liens,  as  prescribed  in  section  1562  of  this  act,  and 
also  against  each  person  made  a  party,  who  then  has  a  specific  lien  on  any  such 
undivided  share  or  interest;  but  a  person  having  any  such  specific  lien  appear- 
ing of  record  at  the  time  of  the  filing  of  the  notice  of  the  pendency  of  the  action, 
who  is  not  made  a  party,  is  not  affected  by  such  judgment. 

§  1582.  [Am'd,  1893.]  Id.;  of  unknown  and  absent  owners. 

Where  a  person  has  been  made  a  defendant  as  an  unknown  person,  or  where 
the  name  of  a  defendant  is  unknown,  or  where  the  summons  has  been  served 
upon  a  defendant  without  the  state,  or  by  publication,  and  he  has  not  appeared 
in  the  action,  the  court  must  direct  his  portion  to  be  invested  in  permanent  secu- 
rities, at  interest,  for  his  benefit,  until  claimed  by  him  or  his  legal  representa- 
tives; but  after  the  lapse  of  twenty-five  years  from  the  time  of  the  payment 
into  court,  or  to  the  treasurer  of  any  county,  of  any  portion  of  the  proceeds  of 
the  sale  of  real  property,  for  unknown  heirs,  heretofore  or  hereafter  to  be  made 
in  any  action  of  partition,  without  any  claim  therefor  having  been  made  by  any 
person,  entitled  thereto,  and  upon  there  being  made  and  presented  to  the  court, 
at  a  special  term  thereof,  proof,  by  petition  or  otherwise,  showing  to  the  satis- 
faction of  the  court  that  due  inquiry  for  such  unknown  heirs,  or  their  representa- 
tives, has  been  made  and  that  they  cannot  be  found,  and  that  no  claim  has 
been  made  for  such  portion  of  said  proceeds  by  any  person  entitled  thereto,  pro- 
ceedings shall  thereupon  be  taken  in  said  court,  and  an  investigation  had 
therein,  as  to  the  heirship,  death  or  whereabouts  of  such  unknown  heirs  or 
their  representatives,  and  as  to  the  known  heirs  of  the  ancestor  of  such 
unknown  heirs,  the  next  of  kin,  representatives  and  distributees  of  such  known 
heirs,  and  as  to  all  persons  interested  in  such  proceeds,  and  their  respective  in- 
terests therein,  and  the  said  court  shall,  by  an  order  made  in  the  action,  direct 
that  a  notice  entitled  in  the  action  and  signed  by  the  petitioner,  or  his  attorney, 
and  directed  to  such  unknown  heirs  or  their  representatives,  and  to  known 
heirs,  their  next  of  kin,  representatives  or  distributees,  and  all  persons  inter- 
ested in  such  proceeds,  be  served  upon  them  by  the  publication  thereof,  the  same 
to  be  published  once  in  each  week  for  six  successive  weeks  in  a  newspaper  pub- 
lished in  the  county  where  the  action  was  brought,  and  in  such  other  newspa- 
pers as  the  court  may  direct,  ordering  and  requiring  such  unknown  heirs,  or 
their  representatives,  and  all  known  heirs,  their  next  of  kin,  or  representatives, 
and  all  persons  interested  in  such  proceeds,  and  each  of  them  to  be  and  appear  in 
said  court  at  a  special  term  thereof,  at  a  time  and  place  to  be  specified  in  said  order 
and  notice,  and  at  least  six  weeks  from  the  date  of  the  first  publication  of  such 
notice,  to  then  and  there  establish  their  heirship  and  identity,  kinship  and  inter- 
est, and  submit  any  proof,  as  to  such  unknown  heirs,  or  their  representatives, 
and  the  known  heirs,  their  next  of  kin,  representatives  or  distributees,  and 
all  persons  interested  and  their  interest  in  such  proceeds,  they  may  desire, 
and  that  in  case  of  their  default  in  so  doing,  that  the  said  proceeds  will 
be  distributed  and  paid  over  to  the  known  heirs  of  the  ancestor  from  whom 
such  unknown  heirs  derived  title  thereto,  and  to  their  heirs,  next  of  kin,  repre- 


232  PARTITION. 

Art.  14.      Final  Judgment,  its  Contents  and  Effect. 

sentatives,  distributees  and  assigns,  and  that  they  and  each  of  them  shall  there- 
after be  forever  barred  of  and  from  all  and  every  cause  or  causes  of  action  for 
such  proceeds,  or  on  account  thereof,  or  growing  out  of  the  distribution  thereof, 
and  of  and  from  all  right,  title,  claim  and  interest  in  and  to  such  proceeds,  and 
shall  be  deemed  to  have  surrendered  all  right,  claim  and  interest  in  and  to  such 
proceeds.     The  order  must  contain  a  direction  that  a  copy  of  the  notice  must  be 
served   on  each  of  the  persons    named  in  the  order,  if  within  the  state,  in  the 
manner  prescribed  for  the  service  of  a  summons  on  a  defendant  in  an  action  in 
the  supreme  court,  at  least  twenty  days  before  the  time  specified  in  the  notice. 
The  publication  of  such   notice,  as  required   by  said  order,  is  hereby  made  and 
shall  be  deemed  and  taken  for  all  purposes  to  be  due  and  complete  service  upon 
each  and  every  of  such  unknown  heirs  or  their  representatives,  and  the  known 
heirs,  their  next  of  kin,  and  representatives,  and    all  persons  interested  in  such 
proceeds,  of  due   notice   of  the  proceedings  to  distribute   and  pay  out  such  pro- 
ceeds, and  shall  be  conclusive   upon  each  and  all   of  them.     Proof  of  such  per- 
sonal service  may  be  made  by  the  affidavit  of  the  person  making  the  same,  and 
proof  of  the  publication  of  such   notice  may  be  made  by  affidavit  of  the  pub- 
lisher of  such  paper  or  papers.     At  the  time  and  place  specified  in  the  said  order 
and  notice,  such   unknown  heirs  or  their  representatives,  and  all  known  heirs, 
their  next  of  kin,  representatives  or  distributees,  devisees,  and  all  persons  in- 
terested in  such   proceeds,  shall   appear  in  court,  in   person  or  by  attorney,  and 
make  proof  establishing  their  heirship  and  identity,  kinship  and  interest  in  such 
proceeds,  and   upon    proof  being  made   to   the  satisfaction   of  the  court  of  the 
heirship  and  identity  of  the  unknown  heirs,  the  proceeding  for  distribution  shall 
be  dismissed.     And  if  such   unknown   heirs  or  their  representatives,  do  not  so 
appear  in  court  at  the  time  and  place  specified  in  such  notice  and  order,  to  estab- 
lish their  heirship  and  identity,  kinship  or  interest,  they  and  each  of  them,  and 
every  person  claiming  under  or  through  them,  shall  thereafter  be  forever  barred 
of  and  from  all   and  every  cause  or  causes  of  action  for  such  proceeds,  or  on 
account  thereof,  or  growing  out  of  the  distribution  of  such  proceeds,  and  of  and 
from  all  right,  title,  claim   and   interest  in  and   to  such  proceeds,  and   shall  be 
deemed   to  have  surrendered  all   right,  claim   and   interest  in  and  to  such  pro- 
ceeds.    And  upon  proofs  being   made  of  such  publication,  and  showing  to  the 
satisfaction  of  the  court  that  such  unknown  heirs  or  their  representatives  cannot 
be  found,  or  are  dead,  the  said   court  shall   have  power  to  decree  accordingly, 
and  to  decree  that  the  share  or  interest  of  such  unknown  heirs  in  such  real  prop- 
erty was  vested,  at  the   time  of  such   sale,  in  the  known   heirs  of  the  ancestor 
from  whom  such  unknov/n  heirs  derived  title  thereto,  and  to  decree  that  the  un- 
claimed portion  of  such   proceeds  was   vested  at  the   time  of  such   payment  in 
such  known  heirs,  and  that  such  heirs,  their  heirs,  next  of  kin,  representatives, 
distributees,  devisees  and  assigns,  are  entitled  thereto;  and  the  said  court  shall 
make  an  order  in  such  action,  directing  the  payment  to  them,  or  their  assigns, 
of  the  respective   shares   or  portions  of,  or  interest   in   such  proceeds  to   which 
they  are  entitled;  and  which  order  shall  be  entered  in  the   office  of  the  clerk  of 
the  county  where  the  original  action  was  brought,  and  after  having  been  so  en- 
tered for  three  months,  shall  be  conclusive  evidence  of  the   regularity  of  the 
proceedings  upon  which  it  is  based,  and  of  all  the  facts  set  forth   therein;  and, 
upon   serving   upon   the   county   treasurer  a   certified   copy    of  such    order,  the 
treasurer  shall  so  pay  over  and  distribute  such  proceeds,  after  deducting  his  law- 


PARTITION.  233 

Art.  14.     Final  Judgment,  its  Contents  and  Effect. 

ful  commissions,  and  shall  thereupon  be  exempt  from  all  liability  on  account 
thereof;  and  if  any  such  proceeds  shall  have  been  paid  over  by  any  county  treasurer 
to  the  treasurer  of  the  state  of  New  York,  under  the  provisions  of  section  seven 
hundred  and  fifty-three  of  this  act,  due  notice  of  said  applications  and  proceed- 
ings shall  be  given  to  the  comptroller  of  the  state  of  New  York,  and  the  said 
proceeds  shall  be  paid  out  by  the  treasurer  of  the  state  of  New  York,  as  pro- 
vided by  sections  seven  hundred  and  fifty-one  and  seven  hundred  and  fifty-three 
of  this  act,  and  upon  such  payment  he  shall  thereupon  be  exempt  from  all 
liability  on  account  thereof. 

§  1583.  Id.;  of  tenants  ot  particalar  estates. 

Where  a  portion  of  the  proceeds  representing  an  undivided  share  or  interest, 
is  invested  for  the  benefit  of  a  tenant  for  life,  or  for  years,  or  of  a  widow,  as 
prescribed  in  the  foregoing  provisions  of  this  article,  the  court  must  cause  it  to 
be  invested  in  permanent  securities,  at  interest,  and  the  interest  to  be  paid, 
from  time  to  time  as  it  accrues,  to  the  person  for  whose  benefit  it  is  invested, 
while  his  or  her  right  continues. 

§  1584.  Court  may  require  security  to  refund. 

The  court  may,  in  its  discretion,  require  any  person,  before  he  receives  his 
portion  of  the  proceeds  of  the  sale,  to  give  such  security  as  it  directs,  to  the 
people,  or  to  such  parties  or  other  persons,  as  it  prescribes,  to  refund  the  same, 
or  a  portion  thereof,  with  interest,  if  it  thereafter  appears  that  he  was  not 
entitled  thereto. 

§  1585    Security  tc  be  taken  in  name  of  county  treasurer. 

A  security  taken  under  any  provision  of  this  article,  except  as  otherwise 
specially  prescribed  therein,  must  be  tal'en  in  the  name  and  official  title  of  the 
county  treasurer  of  the  county  in  which  the  property  sold  is  situated.  He,  and 
his  successors  in  office,  must  hold  the  same  for  the  use  and  benefit  of  the  persons 
interested,  subject  to  the  order  of  the  court. 

§  1586.  Action  thereupon. 

The  court  may  in  its  discretion,  and  upon  such  terms  and  conditions  as  justice 
requires,  make  an  order,  allowing  a  person  interested  in  a  security  specified  in 
the  last  section,  to  maintain  an  action  thereupon  in  the  name  of  the  county 
treasurer. 

§  1595.  Exemplified  copy  of  judgment  may  be  recorded. 

An  exemplified  copy  of  the  judgment-roll,  or  of  the  final  judgment,  in  an 
action  for  partition,  may  be  recorded,  in  the  office  for  recording  deeds,  in  each 
county  in  which  any  real  property  affected  thereby  is  situated. 

Chapter  39,  Law.s  of  1889,  amending  §  1582,  was  declared  as  to 
certain  provisions  to  be  unconstitutional  in  Miller  v.  Ryder,  124 
N.  Y.  500,  decided  March,  1891.  The  section  was  again  amended 
in  1 89 1,  presumably  to  meet  the  questions  passed  on  by  the 
Court  of  Appeals.      It  was  again  amended  as  above  in  1893. 


234  PARTITION. 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


The  share  of  the  plaintiff  may  be  charged  with  the  amount  of 
a  Hen  upon  the  entire  property,  which,  as  between  the  plaintiff 
and  the  common  ancestor,  plaintiff  was  equitably  obliged  to  pay. 
Evarts  v.  Woods,  6  N.  Y.  Supp.  200. 

A  judgment  in  an  action  to  construe  a  will  was  held  not  to  bind 
remaindermen  and  to  be  ground  for  setting  aside  sale  in  Monarqne 
V.  Mojiarguc,  80  N.  Y.  320 ;  see,  also,  Schcit  v.  Lehning,  31  Hun, 
183.  An  existing  invalid  assessment  will  not  relieve  a  purchaser. 
Chase  V.  Chase,  95  N.  Y.  373. 

Where  property  is  devised  in  trust  to  apply  the  rents  and  profits 
and  then  over  to  designated  persons,  the  trust,  even  if  invalid  as 
such,  is  good  as  a  power.  The  testator  did  not  die  intestate  as  to 
any  of  his  property,  and  a  purchaser  in  partition,  to  which  all  the 
devisees  and  legatees  were  parties,  takes  a  marketable  title  although 
testator's  heirs  were  not  represented.  Hoepfner  v.  Sevestre,  10 
Supp.  51. 

Where  partition  has  been  made,  and  parties  have  received  their 
dues  and  acted  upon  the  assumption  that  partition  was  effectual, 
it  will  be  held  valid  though  there  were  irregularities  in  the  proceed- 
ing. Conkling  v.  N.  V.  Elevated  Ry.  Co.  76  Hun,  420,  59  St. 
Rep,  316,  27  Supp.   1098. 

An  action  of  partition  is  not  a  proceeding  in  rem,  and  the 
judgment  therein  and  the  deed  do  not  establish  title  as  against 
third  persons  where  the  parties  to  such  action  are  not  shown  to 
have  had  either  title  or  possession.  Greenleaf  v.  Brooklyn,  etc. 
R.  R.  Co.  141  N.  Y.  395,  57  St.  Rep.  613. 

A  very  full  note  on  special  clauses  in  judgments  for  partition, 
selected  from  recent  precedents,  will  be  found  20  Abb.  N.  C,  at 
page  102. 

The  provisions  of  §  1582  as  amended  in  1891,  providing  for  the 
distribution  of  moneys  deposited  in  a  partition  suit  after  a  lapse 
of  twenty-five  years,  were  held  unconstitutional  in  People  ex  rel. 
Griffin  v.  Rider,  47  St.  Rep.  492,  19  N.  Y.  Supp.  977.  This 
section  was  again  amended  in  1893.  Where  no  provision  is 
made  in  a  judgment  to  protect  the  contingent  interests  of  chil- 
dren not  yet  in  being,  such  interests  are  not  affected  by  the  judg- 
ment, and  the  title  founded  thereon  is  not  a  merchantable  one. 
Barnes  v.  Luther,  yy  Hun,  234,  59  St.  Rep.  760,  28  Supp.  400. 

Where  a  mortgagee  is  made  a  party  for  the  purpose  of  paying 
off  and  discharging  the  mortgage  out  of  the  proceeds  of  the  sale. 


PARTITION.  235 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


the  costs  of  the  partition  suit  should  not  be  deducted  from  such 
proceeds  before  applying  them  on  the  mortgage,  even  though 
such  mortgage  covers  other  land,  if  the  relative  values  of  the 
different  parcels  are  not  shown.  Bellcr  v.  Antisdel,  84  Hun,  252, 
32  Supp.  575,  65  St.  Rep.  719. 

A  final  judgment  does  not  affect  the  rights  and  interests  of 
persons  not  made  parties  under  §  1539.  Lcinen  v.  Elter,  ^t,  Hun, 
249.  The  authorities  cited  as  to  final  judgment  also  relate  to 
judgment  of  sale  under  §  1577. 

A  judgment  in  partition  is  binding  upon  all  parties  though 
minors  or  non-residents,  if  the  court  acquired  jurisdiction  of  them 
and  of  the  subject-matter.  Clemmens  v.  Clemmens,  37  N.  Y.  59. 
Contingent  remaindermen,  or  persons  who  take  under  an  execu- 
tory devise,  and  are  not  in  esse,  are  bound  by  the  judgment  in 
partition  as  being  virtually  represented  by  the  parties  in  interest 
to  the  action.  Mead  v.  Mitchell,  17  N.  Y.  210.  A  judgment 
in  partition  is  conclusive  upon  all  having  any  interest  who  are 
made  parties,  and  conveyances  under  the  sale  under  the  judgment 
are  a  bar  in  law  and  equity  as  against  all  such  parties  and  their 
representatives.  Jenkins  v.  FaJiey,  73  N.  Y.  355.  In  an  action 
for  partition  where  all  the  persons  in  esse  having  any  estate,  pres- 
ent or  future,  vested  or  contingent,  were  made  parties  defendant 
and  were  duly  served,  the  purchaser  at  the  sale  under  t'he  judg- 
ment acquires  a  perfect  title,  and  the  judgment  is  conclusive  as 
to  the  rights  of  all,  and  is  sufficient  to  bar  the  future  contingent 
interests  of  those  not  in  esse  although  no  notice  is  published  to 
bring  in  unknown  parties,  and  though  such  future  owners  may 
take  as  purchasers  under  a  deed  or  will,  and  not  as  claimants  under 
any  parties  to  the  action.  Brevoort  v.  Brevoort,  70  N.  Y.  136. 
But  a  judgment  in  partition  cannot  bind  the  contingent  interest 
of  persons  not  in  esse,  unless  it  provides  for  and  protects  such 
interests  by  instituting  and  preserving  the  proper  part  of  the 
fund.  A  judgment  in  partition  is  binding  upon  all  the  parties, 
and  the  decision  of  the  court  as  to  whether  the  case  is  a  proper 
one  for  actual  partition  or  for  sale  cannot  be  questioned  collater- 
ally, the  judgment  is  conclusive  as  to  all  the  matters  incident  to 
or  essentially  connected  with  the  subject-matter  which  the  parties 
might  have  litigated  and  had  determined  either  as  matter  of 
claim  or  of  defence.  Jordaii  v.  Van  Epps,  85  N.  Y.  427.  That 
an  actual   partition   is  binding  on   all   the   parties,  see   Chism  v. 


236  PARTITION. 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


Keith,  I  Hun,  589;  Brevoort  v.  Grace,  53  N.  Y.  245.  A  judg- 
ment and  sale  does  not  bar  the  contingent  interest  of  persons  not 
in  esse  of  whom  no  notice  is  taken  in  the  action.  Monarque  v. 
Monarqiic,  80  N.  Y.  320.  Where  the  court  has  jurisdiction  of 
the  subject-matter  and  the  parties,  and  appointed  guardians  ad 
litem  for  infant  defendants,  the  partition  is  conclusive  upon  the 
infants  and  their  privies.  Wood  v.  Martin,  66  Barb.  241.  The 
final  order  of  confirmation  of  sale  in  a  partition  suit  has  the  force 
and  effect  of  a  judgment  which  binds  the  parties  when  there  is 
complete  jurisdiction,  whatever  errors  or  irregularities  have  pre- 
ceded it.  An  omission,  from  a  referee's  advertisement  of  sale, 
of  a  portion  of  the  lands  embraced  in  the  action,  and  directed  to 
be  sold,  does  not  vitiate  a  sale  by  the  referee  of  the  omitted  por- 
tion, where,  upon  motion  made,  upon  notice  to  all  parties  in- 
terested, the  sale  was  confirmed.     WoodJiull  v.  Little,  102  N.  Y.  165. 

In  an  action  to  partition  the  lands  of  one  lately  deceased,  the 
purchaser  objected  to  taking  title  on  the  ground  that  the  land 
might  be  subject  to  proceedings  by  the  creditors  of  the  decedent, 
and  a  deposit  of  a  part  of  the  purchase  money  was  accordingly 
directed  by  the  court  to  secure  such  claims.  Held,  that  it  was 
proper  for  the  court,  on  denying  a  motion  on  behalf  of  the  heirs 
for  leave  to  withdraw  and  distribute  such  fund,  to  provide  that 
the  denial  should  be  without  prejudice  to  an  independent  action, 
within  a  specified  time,  to  which  all  parties  in  interest  and  claim- 
ants should  be  made  parties.      Jordon  v.  Poillon,  23  Week.  Dig.  68. 

If  a  decree  in  an  action  for  the  partition  and  sale  of  real  prop- 
erty recognizes  and  protects  the  interests  of  remaindermen  therein, 
the  interests  of  the  remaindermen  are  cut  off;  even  if  the  court 
erred  as  to  the  manner  of  protecting  such  remaindermen,  the  error 
would  be  merely  an  irregularity  and  would  not  invalidate  the 
decree.  Rockivcll  v.  Decker,  33  Hun,  343.  Where  in  an  action 
of  partition  all  the  necessary  parties  were  before  the  court,  and 
their  rights  appeared  from  the  averments  of  the  complaint,  there 
was  no  defect  of  parties.      DieJil  v,  Lambart,  9  Civ.  Pro.  R.  267. 

Where  a  farm  in  which  a  party  owned  an  undivided  twelfth 
part  was  partitioned,  but  the  assignee  in  bankruptcy  holding  the 
title  of  such  tenant  in  common  was  not  a  party,  held,  that  the 
partition  was  not  binding  upon  the  assignee,  who  could  either 
affirm  or  disaffirm  it,  that  this  was  a  right  which  he  was  bound  to 
exercise  within  a  reasonable  time,  and  a  sale  by  him  of  the  farm 


PARTITION.  237 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


was  a  disaffirmance.  Smith  v.  Long,  3  Civ.  Pro.  R.  396.  An 
allotment  and  conveyance  in  partition  held  to  inure  by  way  of 
estoppel  in  pais  against  the  grantor  and  privies  to  a  subsequently 
acquired  title.  House  v.  McCormick,  57  N.  Y.  310.  Judgment 
and  sale  can  only  affect  the  parties,  and  if  the  court  has  jurisdic- 
tion and  they  all  desire  the  sale  to  be  completed  the  purchaser 
cannot  object.  Blakeleyv.  Caldcr,  15  N.  Y.  617.  A  purchaser 
cannot  refuse  to  take  title  on  the  ground  of  the  alienage  of  the 
father  of  two  brothers,  one  of  whom  inherited  from  the  other, 
and  a  claim  that,  therefore,  the  estate  escheated  and  the  people 
should  have  been  parties.  Smith  v.  Mulligan,  11  Abb.  (N.  S.) 
438. 

Precedent  for  Final  Judgment  in  Partition. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  Court  House  in  the  City  of  Brooklyn  on  the  23d 
day  of  May,  1896. 

Present  —  Hon.  William  J.  Gaynor,  Justice. 
SUPREME  COURT  — Richmond  County. 


Edward  Logan,  Daniel  Logan,  Margaret  Logan, 
wife  of  the  said  Daniel  Logan;  Edward  Logan, 
Jr.,  and  John  Logan 

agst. 

David  McConnity,  widower;  Bridget  McConnity, 
Thomas  McConnity,  Mary  McConnity,  Lizzie  Mc- 
Connity, Patrick  J.  Foley,  and  Patrick  J.  Foley  as 
administrator  of  the  goods,  chattels  and  credits 
of  Ellen  Logan  Foley,  deceased. 

This  action  having  been  brought  on  for  hearing  upon  the  plead- 
ings and  proceedings  and  the  report  of  John  J.  Kenney,  Esq.,  the 
referee  herein,  dated  the  17th  day  of  April,  1896,  and  verified  the 
23d  day  of  April,  1896,  by  which  it  appears  that  the  premises  de- 
scribed in  the  interlocutory  judgment  in  this  action  have  been  sold 
for  the  sum  of  ten  thousand  five  hundred  and  forty-five  dollars 
($10,545)  and  on  reading  and  filing  proof  of  due  service  of  notice  of 
this  motion  on  all  the  defendants  who  have  appeared,  and  after 
hearing  William  H.  Good,  Esq.,  representing  Hun  &  Johnston,  Esqs., 
attorneys  for  the  plaintiffs,  Dewitt  Stafford,  Esq.,  guardian  ad  litem 
for  Lizzie  McConnity  and  others,  and  Cephas  Brainerd,  Esq.,  at- 
torney for  Patrick  J.  Foley,  individually  and  as  administrator,  etc.. 

Now,  on  motion  of  Hun  &  Johnston,  Esqs.,  attorneys  for  the 
plaintiffs,  it  is 


238 


PARTITION. 


Art.  14.      Final  Judgment,  its  Contents  and  Effect. 


Adjudged,  that  said  report  and  the  sales  therein  mentioned  be, 
and  the  same  are  hereby,  in  all  things,  confirmed,  and  that  said 
referee  execute  to  the  purchasers  upon  such  sales  a  conveyance  of 
the  property  sold  upon  their  complying  in  all  respects  with  the 
terms  upon  which  the  sales  were  made,  as  stated  in  said  referee's 
report.  That  the  said  referee  first  deduct  from  the  proceeds  of  sale 
his  fees  and  disbursements;  that  the  said  referee  pay  all  taxes, 
assessments,  water  rents  and  inheritance  taxes  which  are  liens  upon 
the  property  sold  and  redeem  the  property  sold  from  any  sales  for 
unpaid  taxes,  assessments  or  water  rates  which  have  not,  apparently, 
become  absolute,  and  that  the  costs  and  expenses  of  this  proceed- 
ing, including  an  additional  allowance  of  $300,  which  are  hereby 
adjusted  according  to  law  at  the  sum  of  $614.62,  be  deducted  from 
the  proceeds  of  such  sale,  and  that  said  referee  pay  the  same  to  the 
plaintiffs'  attorneys. 

It  is  further  ordered  and  adjudged,  that  said  referee  pay  to  the 
guardian  ad  litem  of  the  infant  defendants  out  of  the  proceeds  of 
such  sale  the  sum  of  $150  in  full  of  costs  and  allowance,  which  is 
allowed  to  him  for  his  fees  in  this  action;  and  that  he  pay  to  Cephas 
Brainerd,  Esq.,  attorney  for  Patrick  J.  Foley,  individually  and  as 
administrator,  etc.,  of  Ellen  Logan  Foley,  the  sum  of  $7o,2-5_  for  his 
costs  in  this  action  to  be  taxed;  and  whereas  the  referee  in  this 
action  ascertained  the  debts  due  by  Ellen  Logan  Foley  at  the  time 
of  her  death,  which  are  specified  in  his  report  and  in  the  interlocu- 
tory judgment  herein,  and  that  there  was  not  sufficient  personal 
property  to  pay  the  same,  and  said  interlocutory  judgment  directing 
that  said  claims  therein  specified  be  paid  by  the  referee  out  of  the 
proceeds  of  the  sale,  it  is  further  ordered  that  said  referee  pay 
the  debts  of  the  said  Ellen  Logan  Foley  mentioned  in  the  interlocu- 
tory judgment  in  this  action,  and  that  the  premises  in  said  inter- 
locutory judgment  mentioned  be  sold  free  from  the  debts  of  the 
said  Ellen  Logan  Foley,  and  that  the  conveyance  by  the  referee  to 
the  respective  purchasers  convey  the  property  free  from  any  debt  of 
hers. 

It  is  further  ordered  and  adjudged,  that  the  said  referee  pay  and 
distribute  the  residue  of  the  proceeds  of  said  sale  remaining  after 
paying  therefrom  the  said  costs,  expenses,  taxes  and  assessments, 
as  follows: 

One-fourth  part  thereof  to  Daniel  Logan  and  Margaret  Logan, 
his  wife. 

One-fourth  part  thereof  to  Edward  Logan,  Jr. 

One-fourth  part  thereof  to  John  Logan,  and  the  remaining  one- 
fourth  part  thereof  he  deposit  in  court,  by  paying  the  same  to  the 
County  Treasurer  of  Richmond  County,  to  be  invested  for  the  benefit 
of  Bridget  McConnity,  Thomas  McConnity,  Mary  McConnity  and 
Lizzie  McConnity;  that  the  shares  of  all  the  plaintiffs  in  this  action 
be  paid  to  them  and  their  receipts  for  the  same  to  be  a  full  satis- 
faction and  discharge  to  said  referee. 

It  is  further  ordered  and  adjudged  that  said  purchaser  be  let  into 
possession  of  the  said  property,  and  that  any  of  the  parties  to  this 
action  who  may  be  in  possession  of  said  premises,  or  any  part  there- 


PARTITION. 


239 


Art.  14.     Final  Judgment    its  Contents  and  Effect. 


of,  and  any  person  who,  since  the  commencement  of  this  action,  has 
come  into  the  possession  of  said  property  sold,  or  any  part  thereof, 
dehver  possession  thereof  to  such  purchaser  on  production  of  the 
referee's  deed  of  said  premises. 

And  it  is  further  ordered,  that  said  referee  make  a  report  of  his 
proceedings  under  this  judgment. 

Granted  at  the  Kings  County  Special  Term  and  ordered  certified 
to  Richmond  County  to  be  there  entered. 

W.  J.  G. 

Precedent  for  Final  Judgment. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  City  Hall  in  the  City  of  Albany,  on  the  third  day  of 
June,  1892. 

Present  —  Hon.  D.  Cady  Herrick,  Justice. 
SUPREME  COURT  — Albany  County. 


JOHN  W.  McHARG  and  HARRIETTE  D. 
McHARG,  HIS  Wife,  Plaintiffs 

agst. 

RUFUS  K.  McHARG  and  Harriet  S. 
McHARG,  HIS  Wife,  and  Others,  De- 
fendants. 


This  cause  coming  on  for  a  final  hearing,  upon  the  report  of  the 
referee  appointed  to  make  a  sale  of  the  property  sought  to  be  par- 
titioned in  this  action,  which  report  bears  date  on  the  day  of 
May,  1892,  and  due  notice  having  been  given  to  the  attorneys  for 
parties  defendant  who  have  appeared  herein,  and  to  the  guardians 
ad  litem  oi  the  infant  defendants,  of  this  application  for  the  confirma- 
tion of  said  report  and  for  final  judgment  thereupon,  and  after  hear- 
ing Marcus  T.  Hun,  Esq.,  on  behalf  of  the  plaintiffs,  and  James 
Fenimore  Cooper,  Esq.,  guardian  ad  litem  for  the  infant  defendant 
Katharine  F.  Clarke,  and  after  due  deliberation  having  been  had, 
now,  on  motion  of  Marcus  T.  Hun,  Esq.,  attorney  for  the  plaintiffs' 
it  is 

Ordered,  adjudged  and  decreed,  that  said  report  and  the  sale 
therein  mentioned  be,  and  the  same  are  hereby  in  all  things  con- 
firmed, and  that  said  referee  execute  to  the  purchaser,  upon  said 
sale,  a  conveyance  of  the  property  sold,  he  having  complied  in  all 
respects  with  the  terms  upon  which  the  said  sale  was  made;  and 
that  the  said  referee  first  deduct  from  the  proceeds  of  said  sale  his 
fees  and  disbursements  to  which  he  is  entitled  on  such  sale,  and 
which  amount  to  seventy-seven  -^-^  (77t(tV)  dollars.  That  he 
pay  to  Marcus  T.  Hun,  Esq.,  attorney  for  the  plaintiffs,  the  costs 
and  expenses  of  the  proceedings  in  this  suit,  including  an  additional 
allowance  of  five  per  cent,  which   are  adjusted  according  to  law  at 


240  PARTITION. 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 

the  sum  of  four  hundred  and  sixty  one  -f^^  {461  f,f^)  dollars. 
That  he  pay  to  James  Fenimore  Cooper,  Esq.,  guardian  ad  litem  of 
the  infant  defendant  Katharine  F.  Clarke,  out  of  the  proceeds  of 
such  sale  the  sum  of  twenty-five  (25)  dollars  for  his  fees  in  this 
action. 

It  is  further  ordered  and  adjudged,  that  said  referee,  out  of  the 
residue  of  said  proceeds  of  sale  remaining  after  paying  the  costs  and 
expenses  aforesaid,  pay  and  distribute  the  same  as  follows: 

Two  twenty-thirds  thereof  to  the  plaintiff  John  W.  McHarg;  the 
plaintiff  Harriette  D.  McHarg,  wife  of  the  said  John  W.  McHarg, 
having  released  her  inclioate  right  of  dower  in  said  premises  to  her 
said  husband. 

To  the  defendants  Richard  P.  Marvin,  Jr.,  John  M.  Wood, 
Sophia  K.  Porter,  Frances  N.  Forbes,  Katharine  N.  Cornell,  Sarah 
James  Hall,  Margaret  E.  Cassort,  Grace  Ann  Mattocks  and  Mary 
E.  Goodrich,  each  one  twenty-third  part  thereof. 

To  the  defendant  Rufus  K.  McHarg,  one  twenty-third  part  thereof 
on  his  obtaining  the  release  of  his  wife,  the  defendant  Harriet  S. 
McHarg,  to  him  of  her  inchoate  dower  interest  in  said  premises, 
duly  executed  and  acknowledged  as  required  by  law;  or  if  said 
Harriet  S.  McHarg  shall  not  execute  such  release,  then  that  said 
referee  pay  over  to  her  out  of  said  one  twenty-third  part  the  sum  of 
eight  iu'tj  (8-iVo)  dollars  which  is  hereby  fixed  as  the  proportional 
value  of  her  said  dower  right  according  to  the  principles  of  law 
applicable  to  annuities  and  survivorships,  in  full  discharge  of  her 
said  dower  right,  the  balance  to  said  Rufus  K.  McHarg. 

To  the  defendant  Charles  K.  McHarg,  one  twenty-third  part 
thereof  on  his  obtaining  the  release  of  his  wife,  the  defendant 
Harriet  P.  McHarg-,  to  him  of  her  inchoate  dower  interest  in  said 
premises,  duly  executed  and  acknowledged  as  required  by  law;  or 
if  said  Harriet  P.  McHarg  shall  not  execute  such  release,  then  that 
said  referee  pay  over  to  her  out  of  said  one  twenty-third  part  the 
sum  of  eiglit  y'^Jij  (SjVu)  dollars,  which  is  hereby  fixed  as  the 
proportional  value  of  her  said  dower  right  according  to  the  principles 
of  law  applicable  to  annuities  and  survivorships,  in  full  discharge  of 
her  said  dower  right,  and  the  balance  to  said  Charles  K.  McHarg. 

To  the  defendant  William  N.  McHarg,  one  twenty-third  part  thereof 
on  his  obtaining  the  release  of  his  wife,  the  defendant  Selima  S. 
McHirg,  to  him  of  her  inchoate  dower  interest  in  said  premises, 
duly  executed  and  acknowledged  as  required  by  law;  or  if  said 
Selima  S.  McHarg  shall  not  execute  such  release,  then  that  said  referee 
pay  over  to  her  out  of  said  one  twenty-third  part  the  sum  of 
nine  ^Vu  (91V0)  dollars,  which  is  hereby  fixed  as  the  proportional 
value  of  her  said  dower  right,  according  to  the  principles  of  law 
applicable  to  annuities  and  survivorships,  in  full  discharge  of  her 
said  dower  right,  and  the  balance  to  said  William  N.  McHarg. 

To  the  defendant  Henry  K.  McHarg,  one  twenty-third  part 
thereof  on  his  obtaining  the  release  of  his  wife,  the  defendant 
Fredericka  B.  McHarg,  to  him  of  her  inchoate  dower  interest  in  said 
premises,  duly  executed  and  acknowledged  as  required  by  law;  or 
if  said   Fredericka  B.  McHarg  shall  not  execute  such  release,  then 


PARTITION.  241 


Art.  14.     Final  Judgment,  in  Contents  and  Effect. 


that  said  referee  pay  over  to  her  out  of  said  one-twenty-third  part, 
the  sum  of  thirteen  iVir  (i3ro%)  dollars,  which  is  hereby  fixed 
as  the  proportional  value  of  her  said  dower  right  according  to  the 
principles  of  law  applicable  to  annuities  and  survivorships,  in  full 
discharge  of  her  said  dower  right,  and  the  balance  to  said  Henry 
K.  McHarg. 

To  the  defendant  Franklin  Clarke,  one  twenty-third  part  thereof 
on  his  obtaining  the  release  of  his  wife,  the  defendant  Louie  O. 
Clarke,  to  him  of  her  inchoate  dower  interest  in  said  premises,  duly 
executed  and  acknowledged  as  required  by  law;  or  if  said  Louie  O. 
Clarke  shall  not  execute  such  release,  then  that  said  referee  pay  over 
to  her  out  of  said  one  twenty-third  part,  the  sum  of  fourteen  Vrre 
(Htds)  dollars,  which  is  hereby  fixed  as  the  proportional  value 
of  her  said  dower  right  according  to  the  principles  of  law  applicable 
to  annuities  and  survivorships,  in  full  discharge  of  her  said  dower 
right,  and  the  balance  to  said  Franklin  Clarke. 

To  the  defendant  Selden  E.  Marvin,  one  twenty-third  part  thereof 
on  his  obtaining  the  release  of  his  wife,  the  defendant  Katharine  L. 
Marvin,  to  him  of  her  inchoate  dower  interest  in  said  premises, 
duly  executed  and  acknowledged  as  required  by  law;  or  if  said 
Katharine  L.  Marvin  shall  not  execute  such  release,  then  that  said 
referee  pay  over  to  her  out  of  said  one  twenty-third  part,  the  sum 
of  thirteen  tVo  (iStV?)  dollars,  which  is  hereby  fixed  as  the 
proportional  value  of  her  said  dower  right  according  to  the  principles 
of  law  applicable  to  annuities  and  survivorships,  in  full  discharge  of 
her  said  dower  right,  and  the  balance  to  the  said  Sslden  E.  Marvin. 
To  the  defendant  Robert  N.  Marvin,  one  twenty-third  part  thereof 
on  his  obtaining  the  release  of  his  wife,  the  defendant  Elizabeth 
Marvin,  to  him  of  her  inchoate  dower  interest  in  said  premises,  duly 
executed  and  acknowledged  as  required  by  law;  or  if  said  Elizabeth 
Marvin  shall  not  execute  such  release,  then  that  said  referee  pay 
over  to  her  out  of  said  one  twenty-third  part  the  sum  of  sixteen  -^^^ 
(i6A^ti)  dollars,  which  is  hereby  fixed  as  the  proportional  value 
of  her  said  dower  right  according  to  the  principles  of  law  applicable 
to  annuities  and  survivorships,  in  full  discharge  of  her  said  dower 
right,  and  the  balance  to  said  Robert  N.  Marvin. 

To  the  defendant  David  F.  Cassort,  one  twenty-third  part  thereof 
on  his  obtaining  the  release  of  his  wife,  the  defendant  Flora  A.  Cas- 
sort, to  him  of  her  inchoate  dower  interest  in  said  premises,  duly 
executed  and  acknowledged  as  required  by  law;  or  if  said  Flora  A. 
Cassort  shall  not  execute  such  release,  then  that  said  referee  pay 
over  to  her  out  of  said  one  twenty-third  part,  the  sum  of  fifteen  f^i, 
(i5TT?ti)  dollars,  which  is  hereby  fixed  as  the  proportional  value 
of  her  said  dower  right  according  to  the  principles  of  law  applicable 
to  annuities  and  survivorships,  in  full  discharge  of  her  said  dower 
right,  and  the  balance  to  said  David  F.  Cassort. 

That  the  said  referee  pay  into  the  surrogate's  court  of  the  County 
of  Chautauqua  one  twenty-third  part  thereof,  to  be  there  distributed 
under  the  last  will  and  testament  of  Robert  Newland,  deceased; 
and  that  the  said  referee  bring  into  court  to  be  invested  in  perma- 
nent securities  at  interest,  in   their   names   and    for  their    benefit, 

[Special  Actions  —  16.] 


242  PARTITION. 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


the  remaining  three  one  twenty-third  parts  thereof  of  said  residue 
to  which  the  infant  defendants  Katharine  F.  Clarke,  Isabella  Marvin 
and  Maud  Marvin  are  entitled,  by  paying  over  the  same  to  the 
County  Treasurer  of  Albany  County. 

It  is  further  ordered  and  adjudged,  that  said  referee  take  receipts 
for  the  amounts  so  paid  by  him,  and  file  them  with  his  report  to  be 
made  subsequent  hereto,  and 

It  is  further  ordered  and  adjudged,  that  the  said  purchaser  be  let 
into  possession  of  the  said  property,  and  that  any  of  the  parties  to 
this  action  who  may  be  in  possession  of  said  premises  or  any  part 
thereof,  and  any  person  who  since  the  commencement  of  this  action 
has  come  into  the  possession  of  said  property  sold  or  any  part 
thereof,  deliver  possession  thereof  to  such  purchaser  on  production 
of  the  referee's  deed  of  said  premises. 

It  is  further  ordered  that  the  said  referee  make  a  report  of  his 
proceedings  under  this  judgment. 

It  is  further  ordered,  adjudged,  and  decreed,  that  the  plaintiff 
John  W.  McHarg  be  and  he  is  hereby  discharged  from  all  liability 
and  accountability  for  any  rents  received  by  him  from  said  premises 
since  the  death  of  Jane  Barker. 

The  following  is  a  description  of  the  property  sold: 

(Insert  description.) 

D.  CADY    HERRICK, 

Jus.  Sup.  Ct. 

Sub.  2.  Distribution  of  Proceeds  of  Sale.     §§  1580,  1581. 

§  1580.  Distribution  of  proceeds. 

The  proceeds  of  a  sale,  after  deducting  therefrom  the  costs  and  expenses 
chargeable  against  them,  must  be  awarded  to  the  parties  whose  rights  and  in- 
terests have  been  sold,  in  proportion  thereto.  The  sum  chargeable  upon  any 
share,  to  satisfy  a  lien  thereon,  must  be  paid  to  the  creditor,  or  retained,  subject 
to  the  order  of  the  court ;  and  the  remainder,  except  as  otherwise  prescribed 
in  this  article,  must  be  paid,  by  the  officer  making  the  sale,  to  the  party  own- 
ing the  share,  or  his  legal  representatives,  or  into  court  for  his  use. 

§  1581.  [Am'd,  1892.]     Shares  of  infants. 

Where  a  party  entitled  to  receive  a  portion  of  the  proceeds  is  an  infant,  the 
court  may  direct  it  to  be  invested  in  permanent  securities  at  interest  in  the  name 
and  for  the  benefit  of  the  infant,  or  it  may  direct  it  paid  over  to  the  general 
guardian  of  the  said  infant  when  the  guardian  shall  have  executed  to  such  in- 
fant a  bond  with  two  sureties  which  shall  be  approved  by  the  court,  or  if  any  of 
the  moneys  arising  from  the  proceeds  of  such  sale  shall  have  been  paid  to  the 
county  treasurer,  and  on  due  proof  that  such  money  has  remained  uninvested  in 
permanent  securities  for  the  space  of  three  months,  may  direct  the  same  to  be 
paid  to  the  general  guardian  of  such  infant  upon  his  giving  an  undertaking  in 
an  amount  and  with  sureties,  satisfactory  to  the  court  for  the  faithful  execution 
of  his  trust. 

The  precedents  given  under  Sub.  i  of  this  article  immediately 
preceding,  contain  full  and  explicit  directions  for  distribution  of 
the  fund. 


PARTITION.  243 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


Where  a  widow  makes  no  claim  for  dower  within  one  year, 
her  election  to  accept  the  provisions  of  her  husband's  will  in  lieu 
thereof  becomes  fixed  and  settled,  and  cannot  be  affected  by  a 
subsequent  incorrect  claim  in  an  action  for  partition  that  he 
devised  all  his  real  estate  to  her,  and  in  case  of  her  death  before 
a  sale,  her  administrator  is  entitled  to  the  proceeds  of  the  interest 
so  devised,      Duffy  v.  Duffy,  53  St.  Rep.  758;  S.  C.  70  Hun,  135. 

A  judgment  directing  a  sale  thereunder  in  an  action  in  parti- 
tion brought  by  remaindermen,  while  there  was  an  existing  life 
estate,  is  not  void,  the  court  having  jurisdiction  of  the  subject 
of  the  action  and  the  parties  to  it.      Prior  \.  Prior,  15  Civ.  Pro.  R. 

436. 

The  provisions  of  §  1582,  as  amended  by  Chapter  39,  Laws  of 
1889,  authorizing  a  special  term  in  an  action  of  partition,  to  dis- 
pose of  certain  unclaimed  proceeds,  were  held  to  be  unconstitu- 
tional as  authorizing  the  court  to  divest  unknown  heirs  who  may 
exist  and  are  not  presumed  to  be  dead,  and  vest  other  and  differ- 
ent persons  with  such  funds,  and  thus  deprive  persons  of  their 
property  without  due  process  of  law.  People  ex  rcl.  Miller  v. 
Rider,  124  N.  Y.  500,  36  St.  Rep.  468,  reversing  58  Hun,  407, 
34  St.  Rep.  322. 

This  decision  was  made  in  March,  1891.  It  will  be  noted  that 
this  section  was  amended  by  Laws  of  1891,  page  709.  The  same 
case  came  up  and  was  disposed  of,  65  Hun,  175,  upon  the  Code  as 
it  then  stood,  and  another  amendment  was  made  1893. 

Where  a  decree  in  partition  directs  a  third  of  the  proceeds  of 
the  sale  to  be  invested  for  the  benefit  of  the  widow,  and  that  upon 
her  death  it  be  divided  into  as  many  parts  as  there  are  heirs  and 
paid  to  the  heirs  respectively  by  name,  if  any  of  the  heirs  die  in 
the  lifetime  of  the  widow,  their  executors  or  administrators  and 
not  their  heirs,  as  such,  are  entitled  to  receive  the  respective 
shares  of  those  so  dying.     Robinson  v.  McGregor,  16  Barb.  531. 

Where  an  undivided  share  of  real  estate  was  devised  to  a  hus- 
band in  trust  for  his  wife  during  her  natural  life,  and  after  her 
death  to  her  heirs  forever,  subject  to  a  life  estate  to  her  husband 
after  the  death  of  the  wife,  it  was  held  that  the  proceeds  must  be 
paid  into  court.  Noble  v.CromzvelL  6  Abb.  59,  affirmed,  27  How. 
289,  (Ct.  of  App.)     See  Mead  v.  Mitchell,  5  Abb.  92. 

Where  a  judgment  in  partition  directs  the  referee,  on  selling, 
to  pay  off  taxes  and  assessments,  which  are  liens  upon  property, 


244  PARTITION, 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 

before  making  distribution  of  the  proceeds  of  sale,  the  purchaser, 
who  is  subsequently  obliged  to  pay  such  liens,  is  not  confined  to 
an  action,  but  may  move  in  the  partition  suit  to  compel  the 
referee  to  pay;  Wcscinan  v.  IVingrove,  85  N.  Y.  353;  the  ques- 
tion as  to  the  distribution  of  the  proceeds  of  sale  of  any  undi- 
vided share  of  the  premises,  between  owner  and  incumbrancer,  is 
collateral  to  the  main  purpose  of  the  action ;  the  court  having 
jurisdiction  of  the  fund  adjudges  how  distribution  shall  be  made. 
Halstcdv.  Halstcd,  55   N.  Y.  442. 

The  rule  that  in  equitable  actions  the  court  is  not  restricted  to 
the  mere  remedy  demanded,  and  will  adjust  all  the  equities, 
applied  where  an  action  was  brought  for  partition  of  a  testatrix's 
realty  among  her  heirs-at-law,  and  a  creditor  for  services  rendered 
her,  who  was  a  party,  set  up  that  there  was  no  personal  estate  to 
pay  his  claim,  and  asked  that  it  be  paid  out  of  the  proceeds,  the 
court  holding  that  there  was  no  lien,  as  the  judgment  had  been 
recovered  against  the  executor,  and  not  the  testatrix  in  her  life- 
time, found  that,  by  her  will,  she  had  charged  her  debts  on  her 
real  estate.     Hibbard  v.  Dayton,  32  Hun,  220. 

After  sale  in  partition,  a  referee  was  appointed  to  take  proof  of 
the  rights  and  interests  of  the  respective  parties  and  claimants  in 
the  fund.  It  was  held  that  only  those  parties  who  filed  excep- 
tions to  the  referee's  report  could  appeal  to  the  Court  of  Appeals. 
A  judgment  against  an  executor  for  debt  due  from  the  ancestor 
is  not  a  lien,  either  at  law  or  in  equity,  upon  shares  of  real  estate 
conveyed  or  devised,  and  such  shares  cannot  be  charged  with  its 
payment.  Citing  SJiarpc  v.  Freeman,  45  N.  Y.  802 ;  Dodge  v. 
Stevens,  94  N.  Y.  209.  It  seems  that  the  debts  of  a  decedent 
can  only  be  ordered  paid  out  of  his  real  estate,  or  by  his  heirs  or 
devisees,  in  the  manner  provided  by  statute.  Piatt  v.  Piatt,  105 
N.  Y.  488.  It  was  subsequently  held  at  General  Term  in  the  same 
case  that  the  court  had  power  in  the  action  of  partition  to  adjust 
the  rights  of  the  parties,  and  charge  any  person's  share  who  was  a 
party  with  an  amount  due  the  other  parties — it  appearing  that 
justice  and  equity  required  such  adjustment.  Piatt  v.  Piatt,  15 
St.  Rep.  285. 

Where  a  dispute  arises  as  to  title  to  the  funds  arising  on  sale, 
which  has  been  deposited  with  the  county  treasurer,  it  seems  that 
such  dispute  must  be  settled  by  action  and  not  by  an  order  in 
partition  suit.     Matter  of  Castle,  2  St.  Rep.  362. 


PARTITION.  245 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


Before  a  party  is  entitled  to  receive  his  share  of  the  proceeds  of 
the  sale  he  must  extinguish  liens  he  may  have  against  the  prop- 
erty.    Evarts  v.  Woods,  25  St.  Rep,  498. 

And  the  heir  may  be  required  to  pay  any  indebtedness  he  owes 
the  estate  out  of  his  share.     Piatt  v.  Piatt,  15  St.  Rep.  285. 

Where  a  mortgage  held  by  one  of  the  defendants  has  been 
declared  void  in  an  action  of  foreclosure  no  portion  of  the  pro- 
ceeds of  the  sale  should  be  held  to  meet  its  payment.  Foster  v. 
Roche,  4  N.  Y.  Supp.  605,  s.  c.  21  St.  Rep.  748. 

Where  real  estate  owned  by  tenants  in  common,  one  of  whom 
was  an  infant,  is  sold  under  judgment  in  partition,  the  portion  of 
the  proceeds  belonging  to  the  infant  remains  impressed  with  the 
character  of  real  estate.     Morton  v.  McCoy,  47  N.  Y.  21. 

Where  the  interlocutory  judgment  provides  for  a  gross  sum  in 
satisfaction  of  a  tenancy  by  the  curtesy,  and  the  life  tenant  dies 
before  the  sale,  the  proceeds  should  not  be  charged  with  the  sup- 
posed value  of  such  life  ;  the  Special  Term  has  power  to  correct 
judgment  so  as  to  conform  it  to  the  new  state  of  facts.  Miiigay 
V.  Lackey^  142  N.  Y.  449,  60  St.  Rep.  98,  affirming  74  Hun,  89, 
57  St.  Rep.  270,  26  Supp.  161. 

Where  an  application  is  made  to  a  court  by  an  attorney  in  fact 
for  payment  of  the  share  of  a  party  in  the  proceeds  of  the  sale,  it 
is  prudent  to  obtain  the  sanction  of  the  court  to  such  payment, 
and  when  no  doubt  is  shown  as  to  the  authenticity  of  the 
power  of  attorney,  payment  should  be  direct  to  him,  and  the 
order  directing  payment  to  the  chamberlain  under  such  circum- 
stances is  improper.  LytJigoe  v.  Smith,  140  N.  Y.  z^.2,  55  St. 
Rep.  828. 

Where  no  order  has  been  made  as  to  the  investment  of  the 
shares  of  infants,  and  the  chamberlain  has  invested  them  with 
other  funds  in  securities  of  large  amount,  but  is  prepared  to  sub- 
stitute other  moneys  in  their  place,  there  is  no  permanent  invest- 
ment as  required  by  §  1581,  and  the  court  then  has  power  to 
direct  their  payment  to  the  general  guardian.  T/uirstoJi  v.  Wil- 
bur Trust  Co.  7  Misc.  392,  57  St.  Rep.  561,  27  Supp.  923. 

Where  final  judgment  directs  the  shares  of  infants  to  be  paid 
into  court  to  be  invested  in  permanent  securities  for  their  benefit, 
and  such  investment  has  been  made  by  the  chamberlain,  the  court 
cannot  thereafter  direct  such  shares  to  be  paid  to  the  general 
guardian  of  the  infants.     Flynn  v.  Lynch,  23  Civ.  Pro.  R.  369. 


246  PARTITION. 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


A  judgment  is  irregular  which  provides  that  the  share  of  a  party 
in  the  proceeds  of  sale  shall  be  paid  to  the  party  or  his  attorney. 
Section  1580  directs  the  costs  alone  are  to  be  paid  to  the  attorney 
and  the  shares  of  the  proceeds  of  the  sale  to  the  parties. 
McKenna  v.  Duffy,  64  Hun,  597. 

Report  of  Distribution. 

SUPREME  COURT. 


AMASA  HUMPHREY 

agst. 

EGLIN  HORNBECK  et  al. 


To  the  Supreme  Court  of  the  State  of  New  York  : 

In  pursuance  of  a  judgment  made  in  the  above-entitled  cause,  on 
the  12th  day  of  January,  1884,  I,  the  subscriber,  referee  named  in 
the  said  judgment,  do  respectfully  report  as  follows: 

That  in  obedience  to  the  said  judgment,  I  have  executed, 
acknowledged  and  delivered  to  Levi  H.  Dunn,  the  purchaser  of  the 
premises  directed  to  be  sold  by  me,  a  deed  of  said  premises  on 
receiving  from  him  the  sum  of  $3,320,  the  price  or  sum  for  which 
the  said  premises  were  sold  to  him  as  mentioned  in  my  former 
report  of  such  sale,  made  in  pursuance  of  the  said  judgment,  and  bear- 
ing date  the  14th  day  of  March,  1884,  and  upon  his  complying  with 
all  the  conditions  upon  which  the  said  deed  was  to  be  delivered. 

And  I  further  report  that  I  have  paid  Everett  Fowler,  the  attorney 
for  the  plaintiff  in  this  cause,  the  sum  of  $393.28  for  the  costs  of  the 
plaintiff  in  this  suit  as  taxed,  and  have  taken  a  receipt  therefor, 
which  is  hereto  annexed. 

And  that  I  have  paid  to  William  S.  Kenyon,  Jr.,  the  sum  of  $55 
for  his  costs  and  disbursements  herein,  as  directed  by  the  said  judg- 
ment, and  have  taken  his  receipt  therefor,  which  is  hereto  annexed. 

And  that  I  have  retained  in  my  hands  the  sum  of  $91,  being  the 
amount  of  my  fees,  commissions  and  disbursements  on  said  sale. 

And  I  further  report  that  the  defendant  Eglin  Hornbeck,  being 
willing  to  accept  in  lieu  of  her  dower  interest  in  the  said  premxises  a 
sum,  in  gross,  in  satisfaction  thereof,  out  of  the  "net  proceeds  of  the 
said  premises,  I  have  paid  to  her  the  sum  of  $542,  fixed  by  the  court 
according  to  the  principles  of  law  applicable  to  annuities  in  satisfac- 
tion of  her  dower  right,  title  and  interest  of,  in  and  to  the  said 
premises,  and  have  taken  from  her  a  release,  duly  executed,  of  all 
her  dower  right,  title  and  interest  of,  in  and  to  the  said  premises 
which  release  and  the  consent  to  accept  such  gross  sum  are  hereto 
annexed. 

And  I  do  further  report  that  the  defendant  Eglin  Hornbeck, 
being  willing  to  accept  the  sum  of  S218.17,  in  full,  for  her  life  estate 
in  the  interest  of  an   infant  daughter  of  Joseph  K.  Hornbeck,  de- 


PARTITION.  247 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


ceased,  who  died  since  the  said  Joseph  K.  Hornbeck,  in  the  said 
premises,  I  have  paid  the  said  sum  of  $218.17  to  her,  and  have 
taken  her  release,  duly  executed  and  acknowledged,  of  her  said  life 
estate,  which  said  release  and  her  consent  to  accept  such  gross  sum 
are  hereto  annexed. 

And  I  do  further  report  that  the  residue  of  the  net  proceeds  of 
the  sale  of  the  said  premises,  after  deducting  the  payments  and 
sums  above  mentioned,  have  been  paid  by  me,  as  directed  by  the 
said  judgment,  as  follows: 

I  have  paid  to  the  plaintiff,  Amasa  Humphrey,  the  sum  of  $403.94 
and  have  taken  his  receipt  therefor,  which  is  hereto  annexed, 
together  with  the  release  and  request  of  his  wife,  the  defendant 
Rebecca  Humphrey,  that  her  inchoate  right  of  dower  in  the  prop- 
erty sold  be  paid  to  him,  which  release  and  request  of  the  said 
Rebecca  Humphrey  is  hereunto  annexed. 

I  have  paid  to  John  A.  Baker  the  sum  of  $403.94,  the  amount 
directed  to  be  paid  to  him  by  the  decree  herein,  on  his  producing  a 
deed  of  the  interest  of  the  defendant  Bianca  Osterhoudt  in  the  said 
premises  and  recording  the  same,  he  having  produced  the  said  deed 
and  placed  the  same  on  record  in  the  Ulster  County  Clerk's  office, 
and  have  taken  his  receipt  therefor,  which  is  hereto  annexed.  And 
I  have  paid  to  the  treasurer  of  the  County  of  Ulster  the  balance  of 
the  said  fund,  to  wit:  $1,211.82,  being  for  the  share  of  the  infant 
defendants  George  K.  Hornbeck,  Amelia  Hornbeck  and  Mary  A. 
Hornbeck,  that  is  to  say,  the  sum  of  $403.94  for  the  share  of  each 
one  of  the  said  infant  defendants,  and  I  have  taken  the  receipt  of 
the  said  county  treasurer  therefor,  which  is  also  hereto  annexed. 

And   I  further   report  that  I  have  let  the  said  Levi  H.  Dunn  into 
the  possession  of  the  premises  so  purchased  by  him. 
All  of  which  is  respectfully  submitted. 

Dated  May  2,  1884.  JAMES  S.  McPHERSON, 

Referee. 

(Title  as  before.) 

This  is  to  certify  that  I  have  received  from  James  S.  McPherson, 
the  referee  who  made  the  sale  of  the  premises  described  in  the  com- 
plaint and  judgment  in  this  action,  the  sum  of  $403.94  as  and  for  the 
proceeds  of  the  sale  of  the  said  premises  sold  herein,  and  directed  to 
be  paid  over  to  me  by  the  decree  herein  as  and  for  the  share  of 
George  K.  Hornbeck. 

(Same  as  to  any  other  shares  received.) 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal  this 
[L.  S.]     May  2,  1884. 

JOHN    DERRENBACHER, 
County  Treasurer 

(Title  as  before.) 

Dated  May  4,  1888. 

Received  from  James  S.  McPherson,  the  referee  who  made  sale  in 
this  matter,  the  sum  of  $393.28,  being  amount  of  our  costs  and  dis- 
bursements as  taxed  and  directed  paid  me  in  final  judgment. 

EVERETT    FOWLER. 


248  PARTITION. 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 

(Title  as  before.) 

May  4,  1888. 

Received  from  James  S.  McPherson,  referee,  who  made  sale  in 
this  action,  the  sum  of  $403.94,  being  amount  directed  paid  me  by 
decree,  as  my  share  of  the  proceeds  of  the  real  estate  sold  in  this 
action. 

AMASA    HUMPHREY.     [L.  S.] 

Precedent  for  Order  Confirming  Report  of  Distribution. 

(Caption,  usual  form.) 
SUPREME  COURT. 


JAMES  V.  BRUYN 

agst. 
CORNELIUS  BRUYN  et  al. 


On  reading  and  filing  the  report  of  James  A.  Betts,  referee  duly 
appointed  by  an  order  of  this  court  entered  June  30,  1888,  by  which 
report  it  appears  that  the  said  referee  has  executed,  acknowledged 
and  delivered  to  Albert  L.  Roe,  the  purchaser  of  the  premises  sold 
by  said  referee,  a  deed  thereof,  and  that  he  has  distributed  the  pro- 
ceeds of  the  sale  of  the  said  premises  in  the  manner  directed  by  the 
order  of  the  court,  and  that  the  said  referee  has  annexed  to  his  re- 
port the  receipts  of  the  several  persons  to  whom  the  said  proceeds 
were  required  to  be  paid:  Now,  on  motion  of  C.  A.  &  E.  Fowler,  at- 
torneys for  the  plaintiff,  it  is  ordered  that  the  said  report  be,  and 
the  same  hereby  is,  approved  and  confirmed. 

SAMUEL    EDWARDS, 

J.    S.    C. 

Precedent  for  Petition  to  Draw  Money  Out  of  Court  when 

Infant  has  become  of  Age. 

SUPREME  COURT. 


WILLIAM  H.  WYNKOOP 


agst. 


SUSAN    MARIA   WYNKOOP,   ISABELLA 

WYNKOOP  AND  OTHERS. 


To  the  Supreme  Court  of  the  State  of  New  York  : 

The  petition  of  Isabella  Wynkoop,  one  of  the  above-named  de- 
fendants, respectfully  shows  to  the  court: 

First.  That  she  is  one  of  the  above-named  defendants  in  the 
above-entitled  action,  and  became  of  the  age  of  twenty-one  years  on 
the  i6th  day  of  October,  1887. 


PARTITION.  249 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


Second.  That  on  or  about  the  loth  day  of  March,  1885,  an  action 
was  brought  by  the  above-named  plaintiff  against  the  above-named 
defendant  for  the  partition  of  certain  premises  situated  in  Ulster 
County,  N.  Y. ;  that  such  proceedings  were  had  therein,  that  on  or 
about  the  24th  day  of  April,  1886,  judgment  of  sale  was  entered 
therein,  wherein  and  whereby  it  was,  among  other  things,  decreed 
that  the  sum  of  $2,000,  being  one-third  of  the  balance  to  be  dis- 
tributed as  and  for  the  share  of  said  Isabella  Wynkoop,  infant,  in 
said  real  property,  be  paid  to  the  general  guardian  of  said  Isabella 
Wynkoop,  or  that  the  same  be  paid  to  the  county  treasurer  of  Ulster 
County  for  the  use  and  benefit  of  said  infant,  Isabella  Wynkoop; 
that  the  said  $2,000  were  accordingly  paid  to  the  said  county 
treasurer. 

Wherefore  your  petitioner  prays  that  an  order  may  be  granted 
ordering  the  county  treasurer  of  Ulster  County  to  pay  the  said  sum 
of  $2,000,  with  all  accumulations  of  interest  thereon,  to  your 
petitioner,  Isabella  Wynkoop,  or  to  her  attorneys,  John  E.  Van 
Etten  &  Son,  of  the  City  of  Kingston,  said  County  of  Ulster. 

ISABELLA    WYNKOOP. 

{Add  verification  as  to  pleading.) 

Precedent  for  Affidavit  as  to  Age  of  Applicant. 

SUPREME  COURT. 


WILLIAM  H.  WYNKOOP 


agsL 


SUSAN    MARIA   WYNKOOP,    ISABELLA 
WYNKOOP  AND  Others. 


Ulster  County,  ss.  : 

Catherine  Wynkoop,  of  said  County  of  Ulster,  being  duly  sworn, 
deposes  and  says  that  she  is  the  mother  of  Isabella  Wynkoop,  the 
above  defendant;  that  said  Isabella  became  of  the  age  of  twenty-one 
years  on  the  i6th  day  of  October,  1887. 

(Jurat.)  CATHERINE   WYNKOOP. 

Precedent    for    Certificate    of   County   Treasurer    Showing 

Amount  on  Deposit. 

SUPREME    COURT. 

(Title.) 

I  certify  that  there  is  in  my  hands  and  now  deposited  in  the  Ron- 
dout  Savings  Bank  to  the  credit  of  Isabella  Wynkoop  the  sum  of 
$2,015.25,  being  the  principal  sum  and  interest  thereon  to  July  i, 
1887. 

Dated  November  23,  1887.  JOHN    DERRENBACHER, 

County  Treasurer. 


250 


I'ARTiTlUN. 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


Precedent  for  Order  to  Draw  Money  out  of  Court. 

At  a  Special  Term  of  the  Supreme  Court,  held  in  and  for  the  County 
of  Ulster  at  the  court  house  in  the  City  of  Kingston  on  the  25th 
day  of  November,  1887. 

Present  —  Hon.  Alton  B.  Parker,  Justice. 

WILLIAM   H.  WYNKOOP 

agst. 

SUSAN    MARIA    WYNKOOP,    MARY    J. 
WYNKOOP  AND  ISABELLA  WYNKOOP. 


On  reading  and  filing  the  petition  of  Isabella  Wynkoop,  verified 
November  25,  1887,  and  the  affidavit  of  Catherine  Wynkoop,  duly 
verified  November  25,  1887,  and  the  certificate  of  the  county  treas- 
urer of  Ulster  County,  also  duly  filed,  and  satisfactory  proof  having 
been  made  of  the  facts  set  forth  in  such  application. 

Now,  on  motion  of  John  E.  Van  Etten,  attorney  for  said  petitioner, 
it  is  ordered  that  the  county  treasurer  pay  to  Isabella  Wynkoop,  01 
to  her  attorney,  the  sum  of  $2,015.25,  now  in  his  hands,  to  the  credit 
of  the  said  Isabella  Wynkoop  in  the  above  action,  and  take  a  receipt 

for  the  same. 

ALTON  B.  PARKER, 

Justice  Supreme  Court. 

Sub.  3.   Rents  may  be  Adjusted.     §  1589. 

§  1589.  Rents,  etc.,  may  be  adjusted. 

Nothing  contained  in  tliis  article  prevents  the  court  from  adjusting,  in  the  in- 
terlocutory or  final  judgment,  or  otherwise,  as  the  case  requires,  the  rights  of 
one  or  more  of  the  parties,  as  against  anj^  other  party  or  parties,  by  reason  of 
the  receipt,  by  the  latter,  of  more  than  his  or  their  proper  proportion  of  the  rents 
or  profits  of  a  share,  or  part  of  a  share. 

In  an  action  between  parties  claiming  title  to  land  under  a  will, 
the  court  will  order  an  accounting  and  dispose  of  all  questions 
between  the  parties  in  relation  to  the  land  or  its  use  and  afford 
complete  relief.  Scott  v.  Guernsey,  60  Barb.  163,  affirmed,  48 
N.  Y.  106. 

The  law  seems  to  be  settled  where  one  tenant  in  common  col- 
lects and  appropriates  the  rent  belonging  to  his  co-tenant,  the 
latter  shall  have  a  lien  upon  the  interest  or  share  of  the  person 
collecting  and  appropriating  it  for  his  reimbursement.  Kmgsland  v. 
Chctivood,  39  Hun,  602;  citing  Hannan  v.  Osborn,  4  Paige,  336, 
and  Scott  v.  Guernsey,  60  Barb.  163,  supra.    In  Wright  v.  Wright,  59 


PARTITION.  251 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


How.  177,  it  is  held  that  one  co-tenant  can  recover  from  another 
his  share  of  the  rents  received  by  his  co-tenant.  In  an  action  for 
partition  of  lands  on  which  there  is  a  stone  quarry,  a  tenant  in 
common,  who  is  made  a  defendant,  may  set  up  in  his  answer 
that  the  plaintiff  has  been  in  the  sole  possession  of  the  premises, 
collected  the  rents  thereof,  and  quarried  and  sold  stone  there- 
from, and  may  require  an  account  to  be  rendered  of  the  moneys 
.so  received  by  the  plaintiff,  and  have  an  allowance  made  to  him- 
self therefor.  McCabe  V.  McCabe,  18  Hun,  153.  That  rents  are 
not  recoverable  in  an  action  of  partition  is  held  in  Burhans  v. 
Burha7is,  2  Barb.  Ch.  398;  it  is  distinguished  in  18  Hun,  153, 
supra,  by  reason  of  the  land  being  held  adversely.  Bulen  v.  Bur- 
dcll,  II  Abb.  381,  is  also  distinguished  in  same  case. 

One  of  several  tenants  in  common,  who  possesses  the  entire 
premises  without  any  agreement  with  the  others  as  to  his  posses- 
sion, or  any  demand  on  his  part  to  be  allowed  to  enjoy  the  premi- 
ses with  him,  is  not  liable  to  account  to  them  in  an  action 
brought  by  the  co-tenants  for  the  use  and  occupation  of  the  premi- 
ses. Woolevcr  v.  Knapp,  18  Barb.  265.  One  tenant  in  common, 
although  he  have  the  exclusive  possession  of  the  common  prop- 
erty, is  not  liable  to  account  to  the  other  tenants  in  common 
either  for  rent  or  for  a  share  of  profits  unless  there  be  an  express 
agreement  that  he  shall  do  so.  Where  a  married  woman  is  a 
tenant  in  common  with  others,  of  property  occupied  by  her  and 
her  husband,  his  occupation  being  that  of  his  wife,  no  action  will 
lie  against  him  by  the  other  tenants  in  common  for  rent,  without 
proof  of  an  agreement  to  pay  it.  Wilcox  v.  Wilcox,  48  Barb.  327. 
Where  one  tenant  in  common  takes  from  his  co-tenant  a  lease  of 
the  premises  held  in  common  for  a  term  of  years,  and  after  the 
expiration  of  the  term  continues  in  possession  without  a  new 
express  agreement,  or  any  claim  by  him  to  be  exclusively 
entitled  to  the  possession,  or  any  act  done  to  prevent  a  joint 
occupation  by  his  co-tenant,  the  latter  cannot  recover  of  him  for 
the  use  and  occupation  of  the  premises  after  the  close  of  the 
term.     Dresser  v.  Dresser,  40  Barb.  300. 

The  rule  is  stated  in  Joslyn  v.  Joslyn,  9  Hun,  389,  an  action  for 
an  account,  to  be  that  the  right  of  a  recovery  of  a  tenant  against 
his  co-tenant  for  receiving  more  than  his  share  of  the  rents  and 
profits  of  land,  is  limited  to  the  proportional  share  of  the  net 
amount  actually  received,  and  no  recovery  can  be  had  for  what  a 


252 


PARTITION. 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 

co-tenant,  who  is  himself  in  possession  of  the  land,  takes  there- 
from and  applies  to  his  own  use.  Where  a  co-tenant,  in  such  a 
case,  rents  a  portion  thereof  and  occupies  the  remainder,  it  rests 
upon  the  party  bringing  the  suit  to  show  the  net  amount  of  rent 
received  by  the  defendant  from  his  tenant,  and  in  the  absence  of 
all  proof  on  the  subject  there  is  no  proof  that  the  amount  thereof 
is  equal  to  the  whole  annual  value  of  the  premises  held  in  com- 
mon. The  statement  in  Rosebooni  v.  Roseboom,  15  Hun,  315,  is 
tersely,  that  the  tenant  in  common  is  liable  to  account  only  for 
what  he  receives,  not  for  what  he  takes.  Where  an  order  was 
made  authorizing  a  receiver  to  rent  the  premises  pendente  lite,  to 
one  of  the  defendants,  it  was  enforced  by  the  court,  and  the  pro- 
ceeds coming  to  defendant  applied  thereon.  Fisher  v.  Hersey, 
85  N.  Y.  633.     See  Ford  v.  Knapp,  102  N.  Y.  133. 

One  tenant  in  common  who  receives  no  money  or  property 
from  the  premises  owned  in  common  by  himself  and  others,  but 
simply  occupies  them  himself,  is  not  liable  to  his  co-tenant  for  the 
value  of  the  use  of  the  property  so  occupied  by  him.  Section 
1589  does  not  create  any  greater  liability  as  against  party  in  pos- 
session to  account  for  rents  and  profits  while  he  may  be  only  in 
their  actual  occupancy,  than  existed  prior  to  the  enactment  of 
that  section  of  the  Code.  {Scott  v.  Guernsey,  48  N.  Y.  106,  is  not 
followed.)     Rich  v.  Rich,  50  Hun,  199. 

But  where  the  tenant  in  possession  has  recognized  the  title  of  a 
receiver  by  joining  with  him  in  the  execution  of  a  lease  in  which 
she  agrees  to  pay  rental,  such  rental  may  be  recovered.  Smith 
V.  Lavelle,  13  Misc.  528. 

Sub.  4.  Costs.     §  1579. 

§  1579.  Costs  and  expenses  ;  how  paid. 

Where  final  judgment,  confirming  a  sale,  is  rendered,  the  costs  of  each  party 
to  the  action,  and  the  expenses  of  the  sale,  including  the  officer's  fees,  must  be 
deducted  from  the  proceeds  of  the  sale,  and  each  party's  costs  must  be  paid  to 
his  attorney.  But  the  court  may,  in  its  discretion,  direct  that  the  costs  and  ex- 
penses of  any  trial,  reference,  or  other  proceeding  in  the  action,  be  paid  out  of 
the  share  of  any  party  in  the  proceeds,  or  may  render  judgment  against  any 
party  therefor.  Where  a  proportion  of  the  proceeds  is  to  be  paid  to,  or  invested 
for  the  benefit  of  any  person,  as  prescribed  in  any  provision  of  this  article,  the 
amount  thereof  must  be  determined  by  the  residue  of  the  entire  proceeds,  re- 
maining after  deducting  the  costs  and  expenses  chargeable  against  them. 

Costs  in  partition  are  in  the  discretion  of  the  court.  Austin  v. 
Ahearne,  61  N.  Y.  6.      The  court  has  power  to  award  costs  paya- 


PARTITION.  253 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


ble  out  of  the  proceeds  of  the  sale.  Henderson  v.  Scott,  93  Hun, 
22.  A  plaintiff  recovering  in  an  action  of  partition  is  entitled  to 
costs  of  course  under  §  3228,  and  neither  court  or  referee  has  any 
discretion  as  to  costs,  nor  can  any  portion  of  defendant's  costs  be 
charged  upon  plaintiff,  but  under  section  1559  the  defendant  is 
only  liable  for  so  much  of  plaintiff's  costs  as  is  proportioned  to 
the  interest  of  such  defendant  in  the  real  estate  partitioned. 
Davis  V.  Davis,  3  St.  Rep.   163. 

The  action  of  partition  is  one  of  those  in  which  the  plaintiff  is 
entitled  to  a  percentage  under  §  3252.  It  is  usual  also  to  make  an 
allowance  under  §  3253.  Where  the  parties  on  each  side  of  an 
action  prove  to  be  successful,  the  court  has  power  to  award  ad- 
ditional allowances  to  each,  not  exceeding  $4,000  in  the  aggregate, 
and  it  is  queried  whether  an  action  of  partition  is  such  an  action. 
It  seems  it  might  be  made  where  a  sale  is  had,  but  not  where  an 
actual  partition  is  made.  Weed  v.  Paine,  t,i  Hun,  10.  The  power 
of  the  court  to  award  to  the  guardian  of  an  infant,  to  be  paid  out 
of  the  subject-matter  of  an  action,  such  compensation  as  appears 
to  be  reasonable  for  the  services  he  has  performed,  is  inherent  in 
it  and  does  not  depend  on  the  Code  of  Civil  Procedure,  nor  is 
it  limited  by  it.      Weed  v.  Paine,  31  Hun,  10. 

In  Gott  V.  Cook,  7  Paige,  521,  and  Union  Ins.  Co.  v.  Van  Rensse- 
laer, 4  Paige,  85,  it  is  held  that  special  circumstances  must  exist  to 
allow  a  guardian  ad  litem  more  than  taxable  costs  out  of  a  fund 
to  which  others  are  entitled.  Where  an  extra  allowance  is  made 
in  a  decree  for  partition  and  sale,  a  further  extra  allowance  cannot 
be  made  in  the  same  action  on  the  granting  of  a  decree  confirming 
the  sale  and  directing  distribution  of  the  proceeds.  Brewer  v. 
Brewer,  11  Hun,  147,  af^rmed,  as  Brezver  v.  Penniman,  72  N.  Y. 
603,  without  opinion. 

Where  a  sale  is  ordered,  plaintiff's  application  for  additional 
costs  should  be  postponed  until  final  judgment.  Saffron  v.  Saff- 
ron, 1 1  St.  Rep.  471. 

Where  respondents  were  defeated  on  all  the  issues,  but  the  ref- 
eree held  they  were  entitled  to  taxable  costs  to  be  adjusted,  but 
that  such  costs  could  not  embrace  costs  of  either  trial  or  appeal,  the 
judgment  on  the  first  trial  having  been  reversed  with  costs  to  abide 
the  event,  and  the  clerk  taxed  costs  for  respondent  including  costs 
of  two  trials  and  of  the  appeal,  it  was  held  error.  Shannon  v. 
Pickell,  40  St.  Rep.  559. 


254 


PARTITION. 


Art.  14.     Final  Judgment,  its  Contents  and  Effect. 


Costs  in  an  action  of  partition  are  in  the  discretion  of  the  court, 
and  the  fact  that  an  issue  of  fact  in  the  action  is  triable  by  jury, 
does  not  change  that  rule.      Weston  v.  Stoddard,  42  St.  Rep.  76. 

Where  final  judgment  confirming  a  sale  is  rendered  under  sec- 
tion 1579,  each  party  to  the  action  has  the  right  to  have  his  costs 
paid  to  his  attorneys  out  of  the  proceeds  of  the  sale,  except  those 
costs  which  by  the  second  clause  of  the  section  are  within  the 
discretion  of  the  court.     Allen  v.  Allen,  11  Supp.  470. 

On  final  judgment  confirming  a  sale,  each  party  has  the  right 
to  have  his  costs  paid  to  his  attorneys  out  of  the  proceeds  of  the 
sale,  except  those  costs  which  are  in  the  discretion  of  the  court. 
Allc7i  V,  Allen,  11  St.  Rep.  470. 

Where  all  the  issues  are  found  in  plaintiff's  favor,  defendant  is 
not  entitled  to  costs  proportioned  among  the  defendants  and  the 
judgment  may  provide  that  the  costs  charged  against  such  defend- 
ant be  set  off  against  her  interest.      Stephenson  v.  Cotter,  5  Supp. 

749- 

In  an  action  of  partition  the  right  to  recover  costs  is  to  be  de- 
termined by  the  final  judgment,  and  until  such  judgment  has  been 
recovered,  no  order  for  the  payment  of  costs  and  disbursements 
should  be  made.  An  order,  therefore,  made  after  an  interlocu- 
tory judgment  and  before  a  determination  of  the  persons  entitled 
to  the  property,  or  their  rights  or  interests  therein,  directing  the 
payment,  by  a  receiver  of  rents  and  profits,  of  certain  disburse- 
ments incurred  therein,  is  improper.  Weeks  v.  Cormvell,  38 
Hun,  577. 

The  costs  should  be  charged  upon  the  parties  according  to  their 
respective  rights  and  interests  in  the  premises.  Tibbitts  v.  Tibbitts, 
7  Paige,  204;  and  the  plaintiff's  attorney  acquires  a  lien  for  his 
fees  and  disbursements  upon  the  plaintiff's  share,  which  he  can- 
not be  divested  of  by  assignment  of  that  share.  Creighton  v. 
Ingersoll,  20  Barb.  541.  Where  the  premises  were  sold  to  one 
of  the  defendants  for  a  less  sum  than  he  was  entitled  to  receive 
for  improvements  he  had  made  upon  them,  it  was  held  proper  to 
direct  such  purchaser  to  pay  the  costs  out  of  such  fund  and  re- 
tain the  balance  without  paying  it  over  to  the  referee.  Hender- 
son V.  Scott,  43  Hun,  22. 


PARTITION.  255 


Art.  15.     Application  for  Moneys  Paid  into  Court. 

ARTICLE  XV. 

Application  for  Moneys  Paid  Into  Court.    §§  1564,  1565, 

1566.     Rule  69. 

§  1564.  Application  for  money. 

Where  money  is  paid  into  court,  in  a  case  specified  in  the  last  section,  the 
party  may  apply  to  the  court  for  an  order  directing  that  the  money,  or  such  part 
thereof  as  he  claims,  be  paid  to  him.  Upon  such  an  application  he  must  pro- 
duce the  following  papers  : 

r.  An  affidavit,  made  by  himself,  or,  if  a  sufficient  excuse  is  shown,  by  his 
agent  or  attorney,  stating  the  true  amount  actually  due  on  each  incumbrance, 
and  the  name  and  residence  of  the  owner  of  the  incumbrance,  as  far  as  they  are 
known,  or  can  be  ascertained  with  due  diligence. 

2.  An  affidavit,  showing  service  of  a  notice  of  the  application  upon  each  owner 
of  an  incumbrance.  Service  of  the  notice,  within  the  State,  must  be  personal, 
or  by  leaving  it  at  the  owner's  residence,  with  some  person  of  suitable  age  and 
discretion,  at  least  fourteen  days  previous  to  the  application.  Service,  without 
the  State,  if  personal,  must  be  made  at  least  twenty  days  previous  to  the  applica- 
tion. If  the  owner  of  the  incumbrance  resides  without  the  State,  and  the  place 
of  his  abode  cannot  be  ascertained,  with  reasonable  diligence,  notice  may  be 
served  upon  him  by  publishing  it  in  the  newspaper  printed  at  Albany,  in  which 
legal  notices  are  required  to  be  published,  once  in  each  week  for  the  four  weeks 
immediately  preceding  the  application. 

Upon  the  application,  the  court  must  make  such  an  order  as  justice  requires. 

§  1565.  Payment  of  incumbrances. 

When  the  whole  amount  of  the  unsatisfied  liens  upon  an  undivided  share, 
which  were  existing  at  the  date  of  the  order  of  reference,  has  been  ascertained, 
the  court  must  order  the  portion  of  the  money  so  paid  into  court,  on  account  of 
that  share,  to  be  distributed  among  the  creditors  having  the  liens,  according  to 
the  priority  of  each  of  them.  Where  the  incumbrancer  is  not  a  party  to  the  ac- 
tion, the  clerk  or  other  officer,  by  whom  a  lien  is  paid  off,  must  procure  satisfac- 
tion thereof  to  be  acknowledged  or  proved,  as  required  by  law,  and  must  cause 
the  incumbrance  to  be  duly  satisfied  or  canceled  of  record.  The  expense  of  so 
doing  must  be  paid  out  of  the  portion  of  the  money  in  court,  belonging  to  the 
party,  by  whom  the  incumbrance  was  payable. 

§  1566.  Other  parties  not  to  be  delayed. 

The  proceedings  to  ascertain  and  settle  the  liens  upon  an  undivided  share,  as 
prescribed  in  the  last  three  sections,  shall  not  affect  any  other  party  to  the  ac- 
tion, or  delay  the  paying  over  or  investing  of  money,  to  or  for  the  benefit  of  any 
other  party,  upon  whose  share  or  interest  in  the  property  there  does  not  appear 
to  be  any  existing  lien. 

Rule  69.  Order  for  payment  out  of  court,  what  to  specify,  etc. 

Orders  upon  the  banks  or  other  companies  for  the  payment  of  moneys  out  of 
court  shall  be  made  to  the  order  of  the  person  entitled  thereto,  or  of  his  attorney 
duly  authorized,  and  shall  specify  in  what  particular  suit  or  on  what  account  the 
money  is  to  be  paid  out,  and  the  time  when  the  order  authorizing  such  payment 
was  made.     No  order  in  any  pending  action,  for  the  payment  of  money  out  of 


•56 


PARTITION. 


Art.  15.     Application  for  Moneys  Paid  into  Court. 


court,  shall  be  made,  except  on  regular  notice  or  order  to  show  cause,  duly 
served  on  the  attorneys  of  all  the  parties  who  have  appeared  therein  or  filed 
notice  of  claim  thereto.  When  moneys  are  deposited  by  the  order  of  the  court  in 
any  trust  company,  the  entry  of  such  deposit  in  the  books  of  the  company  shall 
contain  a  short  reference  to  the  title  of  the  cause  or  matter  in  which  such  deposit 
is  directed  to  be  made,  and  specifying  also  the  time  from  which  the  interest  or 
accumulation  on  such  deposit  is  to  commence,  where  it  does  not  commence  from 
the  date  of  such  deposit.  The  secretary  of  the  company  shall  transmit  to  the 
Appellate  Division  of  the  Supreme  Court  in  the  department  in  which  the  trust 
company  is  located  in  each  place  a  statement  of  the  accounts  in  each  depart- 
ment, showing  the  amount,  on  the  first  day  of  January,  including  the  interest 
or  accumulation  on  the  sum  deposited  to  the  credit  of  each  cause  or  matter. 

In  every  draft  upon  the  trust  company  by  the  county  treasurer  or  chamber- 
lain, for  moneys  deposited  with  the  said  company,  or  for  interest  or  accumula- 
tion on  such  moneys,  the  title  of  the  cause  or  matter  on  account  of  which  the 
draft  is  made,  and  the  date  of  the  order  authorizing  such  draft,  shall  be  stated, 
and  the  draft  shall  be  made  payable  to  the  order  of  the  person  or  persons 
entitled  to  the  money,  or  of  his  or  their  attorney,  who  is  named  in  the  order  of 
the  court  authorizing  such  draft.  Any  attorney  or  other  person  procuring  an 
order  for  the  payment  of  money  out  of  court,  shall  obtain  two  certified  copies  of 
the  order,  both  to  be  countersigned  by  the  judge  granting  the  same;  one  copy 
shall  be  filed  with  the  county  treasurer  and  the  other  shall  accompany  the  draft 
drawn  upon  the  depository  and  be  filed  with  it,  and  the  several  banks  and  other 
depositories  having  trust  funds  of  the  court  on  deposit,  are  forbidden  to  pay  out 
any  such  funds  without  the  production  and  filing  of  such  certified  and  counter- 
signed copy  order.  This  provision  is  not  intended  to  dispense  with  any  of  the 
requirements  of  this  rule,  as  to  the  form  of  the  draft,  nor  to  apply  to  a  case 
where  periodical  payments  are  directed  to  be  made,  as  provided  for  by  the  last 
sentence  of  said  rule,  after  the  first  payment  from  such  fund  shall  have  been 
made  under  an  order  of  the  court,  in  the  manner  herein  specified.  Where 
periodical  payments  are  directed  to  be  made  out  of  a  fund  deposited  with  such 
company,  the  delivery  to  the  secretary  of  the  company  of  one  copy  of  the  order 
authorizing  the  several  payments  shall  be  sufficient  to  authorize  the  payment  of 
subsequent  drafts  in  pursuance  of  such  order. 


Precedent  for  Affidavit  on  Application  to  Draw  Money  Out 

of  Court. 

SUPREME  COURT. 


JOHN  HASKINS 


agst. 


MARY    HASKINS,    JAMES   C.    HASKINS 
AND  LOISA   M.   DURYEA. 


Ulster  County,  ^-.y.; 

James   C.  Haskins,    being  duly  sworn,  says   that  he  is  one  of  the 
defendants  above  named ;  that  this  action  was  brought  for  the  par- 


PARTITIOX.  257 


Art.  16.     Actual  Partition. 


tition  of  real  estate,  situated  in  the  County  of  Ulster,  and  owned  by 
the  parties  hereto  as  tenants  in  common;  and  the  share  or  interest 
of  deponent  in  said  real  estate  was  the  undivided  one-fourth  part; 
that,  as  deponent  is  informed  and  believes,  such  proceedings  were 
had  in  said  cause,  that  the  said  real  estate  was  sold  by  and  under 
an  interlocutory  judgment  herein,  and  the  share  or  portion  of  the 
purchase-money  belonging  to  deponent,  which,  after  deducting  the 
costs  and  charges  to  which  it  was  liable,  amounted  to  $2,300,  was 
ordered  to  be  brought  into  court  and  paid  to  the  treasurer  of  Ulster 
County,  and  said  sum  is  now  in  the  possession  of  said  treasurer, 
and  said  sale  was  duly  confirmed ;  that  said  share  of  deponent  in 
said  real  estate  was  incumbered  at  the  time  of  said  sale  by  a  judg- 
ment in  favor  of  John  Harley,  of  the  City  of  Kingston,  said  county, 
against  deponent,  which  judgment  was  docketed  in  the  clerk's  office 
of  Ulster  County,  on  the  23d  day  of  March,  1883;  that  the  said 
judgment  is  now  owned  by  the  said  John  Harley,  who  resides  at  No. 
20  Fair  street,  said  City  of  Kingston,  and  the  true  amount  now  actually 
due  on  the  said  judgment  is  the  sum  of  $1,124.32,  with  interest  from 
the  23d  day  of  March,  1883,  and  that  there  is  no  other  incumbrance 
chargeable  upon  the  share  of  deponent  as  aforesaid,  as  he  verily  be- 
lieves. 

(Jurat.)  JAMES    C.    HASKINS. 

ARTICLE  XVI. 

Actual  Partition.     §§  1 547-1 560,  1587. 

Sub.  I.  Partial  partition,  whei\  made.     §§  1547,  1548. 

2.  Interlocutory  judgment  for  actual  p.\rtition;  powers  and  duties  of 

commissioners.     §§  1549,  i550,  1551,  1552,  1553. 

3.  Report  of  commissioners  and  confirmation  of  report.     §§  1554,  1555, 

1556- 

4.  Final  judgment  FOR  ACTUAL  PARTITION.     §§  1557,  155S,  1559,  1560. 

5.  Compensation  for  equality  of  partition.     §  1587. 

Sub.  I.   Partial  Partition,  when  Made.     §§  1547,  1548. 

§  1547.  Partial  partition;  when  made. 

Where  the  right,  share,  and  interest  of  a  party  has  been  ascertained  and 
determined,  and  the  rights,  shares,  or  interests  of  the  other  parties,  as  between 
themselves,  remain  unascertained  or  undetermined,  an  interlocutory  judgment 
for  a  partition,  entered  as  prescribed  in  the  last  section,  must  direct  a  partition, 
as  between  the  party  whose  share  has  been  so  determined  and  the  other  parties 
to  the  action.  Where  the  rights,  shares,  and  interests  of  two  or  more  parties 
have  been  thus  ascertained  and  determined,  the  interlocutory  judgment  may 
also  direct  the  partition  among  them  of  a  part  of  the  property,  proportionate  to 
their  aggregate  shares.  In  either  case,  the  court  may,  from  time  to  time,  as  the 
other  rights,  shares,  and  interests  are  ascertained  and  determined,  render  an 
interlocutory  judgment,  directing  the  partition,  in  like  manner,  of  the  remainder 
of  the  property.  Where  an  interlocutory  judgment  is  rendered,  in  a  case  speci- 
fied in  this  section,  the  court  may  direct  the  action  to  be  severed,  and  final 
judgment  to  be  rendered,  with  respect  to  the  portion  of  the  property  set  apart  to 
[Special  Actions  —  17.] 


258  PARTITION. 


Art.  16.     Actual  Partition. 


the  parties,  whose  rights,  shares,  and  interests  are  determined,  leaving  the 
action  to  proceed  as  against  the  other  parties,  with  respect  to  the  remainder  of 
the  property;  and,  if  necessary,  the  court  may  direct  that  one  of  those  parties  be 
substitutec(  as  plaintiff. 

^  1548.   Shares  may  bo  set  oflf  in  common. 

Where  two  or  more  parties,  to  an  action  for  partition,  make  it  appear  to  the 
court,  that  they  desire  to  enjoy  their  shares  in  common  with  each  other,  the 
interlocutory  judgment  may,  in  the  discretion  of  the  court,  direct  partition  to  be 
so  made,  as  to  set  off  to  them  their  shares  of  the  real  property  partitioned,  with- 
out partition  as  between  themselves,  to  be  held  by  them  in  common. 

A  referee  was  formerly  appointed  to  .set  off  .shares  of  those  who 
desired  to  remain  without  partition.  NortJiriip  v.  Anderson^  8  How. 
351.  There  may  be  actual  partition  between  all  the  plaintiffs  on 
one  hand  and  all  the  defendants  on  the  other.  U^altcr  v.  Walter,. 
3  Abb.  N.  C.  12.  Partition  was  ordered  where  the  right  of  one 
defendant  to  an  undivided  moiety  was  admitted,  but  interests  in 
the  other  half  being  disputed,  were  left  to  be  litigated ;  Phelps  v. 
Green,  3  Johns.  Ch.  302;  and  part  of  the  lands  were  secured  to 
some  of  the  parties  by  reason  of  prior  equities,  and  some  sold. 
War  field  v.  Crane,  4  Abb.  Ct.  of  App.  Dec.  525.  One  tenant 
may  have  his  share  set  off  to  him  while  that  of  the  others  is  sold. 
Haywood  v.  Jndsoji,  4  Barb.  228. 

As  to  the  control  of  the  court  over  the  question  of  costs,  see 
Henderson  v.  Seott,  43  Hun,  22,  and  cases  cited. 

Sub.    2.    Interlocutory    Judgment    for    Actual    Partition  ; 
Powers  and    Duties    of    Commissioners.     §§  1549-1553. 

g  1549.   Appointment  of  commissioners. 

Where  the  interlocutory  judgment,  in  an  action  for  partition,  directs  a  parti- 
tion, it  must  designate  three  reputable  and  disinterested  freeholders  as  commis- 
sioners, to  make  the  partition  so  directed. 

ij  1550.  Commissioners  to  be  sworn,  etc. 

Each  of  the  commissioners  must,  before  entering  upon  the  execution  of  his 
duties,  subscribe  and  take  an  oath  before  an  officer  specified  in  section  842  of 
this  act,  to  the  effect  that  he  will  faithfully,  honestly  and  impartially  discharge 
the  trust  reposed  in  him.  Each  commissioner's  oath  must  be  filed  with  the  clerk 
before  he  enters  upon  the  execution  of  his  duties.  The  court  may,  at  any  time, 
remove  either  of  the  commissioners.  If  either  of  them  dies,  resigns,  neglects 
or  refuses  to  serve,  or  is  removed,  the  court  may,  from  time  to  time,  by  order, 
appoint  another  person  in  his  place. 

§  1551.  Id.;  vrhen  to  make  partition. 

The  commissioners  must  forthwith  proceed  to  make  partition,  as  directed  by 
the  interlocutory  judgment,  unless  it  appears  to  them,  or  a  majority  of  them, 
that  partition  thereof,  or  of  a  particular  lot,  tract,  or  other  portion  thereof,  can- 


PARTITION. 


259 


Art.  16.     Actual  Partition. 


not  be  made,  without  great  prejudice  to  the  owners;  in  which   case,  they    must 
make  a  written  report  of  that  fact  to  the  court. 

g  1552.  Partition;  hew  made. 

In  making  the  partition,  the  commissioners  must  divide  the  property  into  dis- 
tinct parcels,  and  allot  the  several  parcels  thereof  to  the  respective  parties, 
quality  and  quantity  being  relatively  considered,  according  to  the  respective 
rights  and  interests  of  the  parties,  as  fixed  by  the  interlocutory  judgment.  They 
must  designate  the  several  parcels  by  posts,  stones,  or  other  permanent  monu- 
ments. They  may  employ  a  surveyor,  with  the  necessary  assistants,  to  aid 
them  in  so  doing. 

§  1553.   Provision  where  there  i.s  a  particular  estate. 

Where  a  party  has  a  right  of  dower  in  the  property,  or  a  part  thereof,  which 
has  not  been  admeasured,  or  has  an  estate  by  the  curtesy,  for  life  or  for  years, 
in  an  undivided  share  of  the  property,  the  commissioners  may  allot  to  that 
party  his  or  her  share  of  the  property,  without  reference  to  the  duration  of  the 
estate.  And  they  may  make  partition  of  the  share  so  allotted  to  that  party, 
among  the  parties,  who  are  entitled  to  the  remainder  or  reversion  thereof,  to  be 
enjoyed  by  them  upon  the  determination  of  the  particular  estate,  where,  in  the 
opinion  of  the  commissioners,  such  a  partition  can  be  made  without  prejudice 
to  the  rights  of  the  parties. 

All  the  parties  interested  should  have  notice  of  the  proceedings 
of  the  commis-sioners,  and  without  it  the  report  will  be  set  aside 
for  irregularity.  Rozv  v.  Roiv,  4  How.  133;  Dean  v.  Empire  Ins. 
Co.  9  How.  69.  If,  by  mistake,  the  commissioners  extend  their 
action  to  land  not  describe  in  the  proceedings,  their  report  is  void, 
and  so  is  the  judgment  of  the  court  based  upon  it.  Corzvithe  v. 
Griffing,  21  Barb.  9.  They  are  not  bound  to  subdivide  several 
parcels  among  the  parties,  but  may  allot  a  distinct  parcel  to  each 
party  if  of  equal  value ;  and  if  not,  may  make  compensation  from 
one  party  to  the  other  for  equality  of  partition.  Larkin  v.  Mann, 
2  Paige,  29.  Actual  partition,  as  between  all  the  plaintiffs  on  one 
side  and  all  the  defendants  on  the  other,  may  be  made,  and  an 
agreement  that  a  tenant  under  an  out.standing  lease  should  be  paid 
for  his  building  at  the  expiration  of  his  term,  whether  it  be  an  in- 
cumbrance or  not,  may  be  deemed  an  equitable  charge,  to  be 
considered  in  making  actual  partition.  Walter  v.  Walter,  3 
Abb.  N.  C.  12.  Where  a  portion  only  of  a  deceased  owner's  lands 
were  partitioned,  leaving  the  rest  to  be  partitioned  in  another 
proceeding  on  the  death  of  his  widow,  it  was  held  unauthorized  by 
statute.  Post  v.  Post,  65  Barb.  192.  Where  the  equities  of  the 
case  give  some  of  the  parties  equities  in  specific  parcels,  they  are 
entitled  to  have  the  actual  value  of  such  parcels  ascertained,  and 
a  judgment  directing  that  the  value  of  the  parcels  as.signed  on  ac- 


26o 


PARTITION. 


Art.  i6.     Actual  Partition. 


count  of  such  equities  shall  be  estimated  at  the  same  rate  as  the 
other  parcels  bring  upon  the  sale,  is  error.  Warficld  v.  Crane,  4 
Abb.  Ct.  App.  Dec.  525. 

The  commissioners  can  require  the  payment  of  money  to 
equalize  shares,  and  the  court  will  not  interfere  unless  it  appears 
the  power  has  been  abused  or  exercised  unjustly.  Post  v.  Post^ 
65  Barb.  192;    Walter  v.  Walter,  3  Abb.  N.  C.  12,  supra. 

All  of  the  commissioners  must  meet  together  in  the  perform- 
ance of  any  of  their  duties  —  Schuyler  v.  Marsh,  ^j  Barb.  350  — 
and  the  report  should  be  signed  by  all,  and  state  that  they  all 
met.  If  not  signed  by  all,  a  reason  for  the  omission  should  be 
given.      UnderJtill  v.  Jackson,  i  Barb.  Ch.  73. 

Commissioners  do  not  possess  the  power,  with  a  view  to  affecting 
an  equal  division  of  the  property,  to  direct  a  partial  destruction 
of  the  buildings  thereon.  Vail  v.  Vail,  52  Hun,  520;  appeal  dis- 
missed, 117  N.  Y.  62. 

Where  the  referee  in  partition  reports  in  favor  of  an  actual 
partition  and  against  a  sale  if  such  report  is  adopted  by  the  court, 
the  proceedings  are  had  from  that  point  under  the  provisions  now 
being  considered. 

Precedent  for  Interlocutory  Judgment  for  Actual  Partition. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  Chambers  of  Mr.  Justice  Putnam  in  the  town  hall  at 
Saratoga  Springs,  County  of  Saratoga,  N.  Y.,  on  the  12th  day 
of  December,  1890. 

Present  —  Hon.  John  R.  Putnam,  Justice. 


Charles  S.  Weston 


Mary  R.  Stoddard,  Abiel  Stoddard,  L.  Allen  Car- 
penter, Charles  W.  Pollard,  Pamelia  Weston, 
James  E.  Pollard,  Cora  F.  Pollard,  Harriet  A. 
Day,  Stella  P.  Burpee,  Charles  H.  Lee,  Sarah  L. 
McOmber,  Fannie  Smith,  Sarah  Weston,  Belle 
Howe,  Lucy  A.  Allen,  Gideon  Edwin  Lee,  Laura 
A.  Henry,  Nancy  H.  Lee,  Melissa  P.  Lee,  John 
Daig  and  Bridget  Daig,  his  wife;  Reuben  L. 
Curtis,  Samuel  Burpee,  Edward  B.  Clark  and 
Minnie  A.  Clarke,  his  wife,  and  Florence  Burpee. 


137  N.  Y.  119. 


This  action  coming  on  to  be  tried    at   a    Special    Term    of   the 
Supreme  Court,  held  at  the  town  hall  in  Saratoga  Springs  on  the  4th 


PARTITION,  261 


Art.  16.     Actual  Partition. 


day  of  June,  1890,  due  proof  having  been  made  of  the  service  of  the 
summons  and  complaint  herein  on  all  of  the  defendants,  and  that  a 
notice  of  the  pendency  of  action  having  been  duly  filed  in  the  office 
of  the  clerk  of  the  County  of  Saratoga,  and  such  papers  were  served 
more  than  twenty  days  since,  that  such  notice  filed  more  than  twenty 
days  since,  and  that  none  of  the  defendants  have  appeared  in  the 
action  except  the  defendant  Mary  R.  Stoddard,  who  appears  by  and 
answers  by  Charles  S.  Lester,  her  attorney;  Abiel  Stoddard,  Ed- 
ward B.  Clark  and  Minnie  A.  Clark,  who  appear  and  answer  by  John 
W.  Crane,  their  attorney;  John  Daig  and  Bridget  Daig,  Samuel 
Burpee  and  Reuben  L.  Curtis,  who  appear  and  answer  by  James  VV. 
Lester,  their  attorney  ;  and  L.  Allen  Carpenter,  Charles  S.  Weston 
and  Cora  F.  Pollard,  infants  who  appear  and  answer  by  their  at- 
torney and  guardian  ad  litem,  Walter  P.  Butler,  all  except  the  said 
infants  being  of  full  age  and  denying  the  material  allegations  of  the 
complaint;  and  the  issues  so  raised  by  said  answer  having  been 
tried  by  the  court  as  aforesaid,  and  its  decision  having  been  made 
and  entered  whereby  actual  partition  of  the  said  premises  described 
in  the  complaint  is  directed  to  be  made  among  the  plaintiff  and  de- 
fendants as  herein  set  forth,  and  whereby  the  alleged  mortgage  set 
out  in  the  amended  answer  of  the  defendant  Mary  R.  Stoddard  is 
directed  to  attach  to  one-fourth  of  said  premises  directed  to  be  set 
off  to  the  plaintiff  and  defendants  (other  than  the  defendant  Mary 
R.  Stoddard  and  those  claiming  under  her)  subject  to  any  defense 
the  said  plaintiff  and  defendants  may  have  thereto,  the  court  not 
passing  on  its  validity. 

Now,  on  motion  of  Winsor  B  French,  plaintiff's  attorney,  and 
after  hearing  Charles  S.  Lester,  attorney  for  the  defendant  Mary  R. 
Stoddard,  and  counsel  for  all  the  other  defendants  who  have 
appeared  (except  the  said  infants)  opposed,  it  is,  Ordered,  ad- 
judged and  decreed  that  the  rights,  shares  and  interest  of  the 
parties  to  this  action  in  the  property  described  in  the  complaint  are 
as  follows: 

ist.  The  plaintiff  and  the  defendant  Stella  P.  Burpee  each  an  un- 
divided one  twenty-fourth  part  of  said  premises,  subject  to  the  right 
of  dower  therein  of  the  said  defendant  Pamelia  Weston. 

2nd.  The  defendants  L.  Allen  Carpenter,  Charles  W.  Pollard  and 
Cora  F.  Pollard  each  an  undivided  one  seventy-second  part  of  said 
premises,  subject  to  the  right  of  dower  of  their  grandmother,  the  said 
defendant  Pamelia  Weston  thereon. 

3rd.  The  said  defendants  Sarah  L.  McOmber,  Charles  H.  Lee, 
Pamelia  Weston  and  Fannie  Smith  each  an  undivided  one  forty- 
eighth  part  of  the  said  premises,  subject  to  the  dower  right  of  the 
defendant  Harriet  A.  Day  in  an  undivided  one  fifty-sixdi  part  of 
said  premises. 

4th.  The  defendants  Sarah  Weston,  Belle  Howe,  Gideon  Edwin 
Lee  and  Laura  A.  Henry  each  an  undivided  one  hundred  and  ninety- 
second  part  of  said  premises,  subject  to  the  dower  right  of  the  said 
defendant  Harriet  A.  Day  in  one  fifty-sixth  part  of  said  premises, 
and  also  subject  to  the  dower  right  of  the  said  defendant  Nancy  H. 
Lee  therein. 


262  PARTITION. 


Art.  16.     Actual  Partition. 


5th.  The  said  defendant  Harriet  A.  Day  to  a  dower  interest  in 
one  undivided  fifty-sixth  part  of  the  said  premises. 

6th.  The  said  defendant  Nancy  H.  Lee  to  a  dower  interest  in  an 
undivided  one  forty-eighth  part  of  the  said  premises,  sul)ject  to  the 
dower  interest  of  the  said  defendant  Harriet  A.  Day  in  an  undivided 
one  fifty-sixth  part  of  the  said  premises. 

7th.  The  said  defendant  Melissa  P.  Lee  to  an  inchoate  dower  in- 
terest in  an  undivided  one  one  hundred  and  ninety-second  part  of 
the  said  premises,  subject  to  the  dower  right  of  the  said  defendant 
Harriet  A.  Day  in  an  undivided  one  fifty-sixth  part  of  the  said  premi- 
ses and  the  dower  right  of  the  said  defendant  Nancy  H.  Lee  therein. 

8th.  The  said  defendant  Lucy  A.  Allen  to  an  undivided  one  forty- 
eighth  part  of  the  said  premises,  subject  to  the  dower  interest  of  the 
defendant  Harriet  A.  Day  in  an  undivided  one  fifty-sixth  part  of  said 
premises. 

9th.  The  defendant  Mary  R.  Stoddard  to  an  undivided  three- 
fourths  thereof  subject  to  such  portions  of  her  said  undivided  three- 
fourths  as  have  been  conveyed  to  and  are  now  owned  by  the  defend- 
ants Bridget  Daig,  Florence  Burpee  and  Edward  B.  Clark  as  afore- 
said. 

loth.  The  defendants  Abiel  Stoddard  and  John  Daig  have  no  in- 
terest in  the  said  premises. 

nth.  The  defendant  Reuben  L.  Curtis  is  a  tenant  under  the  de- 
fendant Mary  R.  Stoddard 

i2th.  The  defendant  Samuel  Burpee  is  a  tenant  under  the  defend- 
ant Florence  Burpee. 

13th.  The  defendant  Minnie  A.  Clark  an  inchoate  dower  interest  in 
the  property  owned  by  Edward  B.  Clark  as  aforesaid. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  plaintiff 
and  the  said  defendants,  heirs  of  Charles  Lee  and  Samuel  A.  Weston, 
having  signified  their  desire  so  to  do,  shall  take  and  hold  their  one- 
quarter  in  common  among  themselves,  and  their  shares  hereinbefore 
stated  shall  be  set  off  to  them  as  a  whole  undivided  one-quarter 
without  partition  as  between  themselves,  to  be  held  by  them  in  com- 
mon, and  that  the  said  alleged  mortgage  of  the  defendant  Mary  R. 
Stoddard  shall  attach,  if  at  all,  to  the  said  one-quarter  and  shall  be 
subject  to  any  defence  that  the  plaintiff  and  said  defendants  may 
have  thereto;  its  validity  as  a  mortgage  or  lien  upon  said  premises 
not  being  passed  upon  or  adjudicated  in  this  action;  that  partition 
be  made  of  the  premises  mentioned  in  the  complaint  herein  as  afore- 
said, which  premises  are  described  as  follows: 

(Insert  description.) 

Charles  H.  Sturges,  Joseph  D.  Baucus  and  Arthur  D.  Seavey,  three 
reputable  and  disinterested  freeholders,  are  hereby  appointed  com- 
missioners to  make  the  partition  herein  directed  and  to  proceed  and 
report  according  to  law;  that  said  commissioners  shall  divide  the 
said  premises  into  parts  as  hereinbefore  directed — to  be  held  and  en- 
joyed by  the  said  parties  severally,  according  to  their  rights  and  in- 
terests therein  so  ascertained,  determined  and  declared  as  aforesaid; 
that  each  party  to  the  action  is  hereby  requested  to  produce  and  file 


PARTITION.  263 


Art.  16.     Actual   Partition. 


with  the  said  commissioners  or  a  majority  of  them,  for  such  time  as 
they  shall  deem  reasonable,  all  deeds,  writings,  surveys  or  maps  re- 
lating to  the  said  premises  or  any  part  thereof;  that  in  case  partition 
of  said  premises  cannot  be  made  with  perfect  equality  between  the 
said  parties  according  to  their  respective  rights  and  interests  therein, 
unless  compensation  be  made  by  one  or  more  of  them  to  other  of 
them  for  equality  of  partition,  then  the  said  commissioners  shall 
ascertain  and  report  the  proper  compensation  which  ought  to  be 
made  for  equality  of  partition  and  by  whom  it  should  be  paid  and  to 
whom  it  ought  to  be  allowed;  that  the  costs,  disbursements  and 
referee's  fees,  stenographer's  fees,  surveyor's  and  commissioner's 
charges  and  clerk's  fees  shall  be  borne  and  paid  by  the  respective 
parties  in  the  manner  to  be  hereafter  directed  in  the  final  judgment 
to  be  made  and  entered  in  this  action;  any  party  to  this  action  may 
apply  to  the  court  at  the  foot  of  this  judgment  for  further  instruc- 
tions. 

December  12,  1890. 

JOHN    R.  PUTNAM, 

J.    S.    C. 

Precedent  for  Judgment  for  Actual  Partition. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  City  Hall,  in  the  City  of  Kingston,  Ulster  County, 
N.  Y.,  on  the  7th  day  of  October,  1887. 

Present  —  Hon.  Samuel  Edwards,  Justice. 


NATHAN  R.  NICKERSON 

agst. 
EMMA  STEPHENS  et  al. 


Due  proof  having  been  made  of  the  service  of  the  summons  and 
complaint  herein  on  all  the  defendants  herein  except  the  defendant 
John  Butler,  who  is  deceased,  and  that  a  notice  of  pendency  of  this 
action  has  been  duly  filed  in  the  office  of  the  clerk  of  the  County  of 
Ulster,  that  such  papers  were  served  more  than  twenty  days  since, 
and  that  such  notice  was  filed  more  than  twenty  days  since,  and  that 
none  of  the  defendants  have  appeared  in  the  action  except  the  de- 
fendants Emma  Stephens  and  Nelson  Stephens,  who  appeared  by 
Linson  &  Van  Buren,  their  attorneys,  and  interposed  an  answer  for 
the  defendant  Emma  Stephens,  and  a  demurrer  for  the  defendant 
Nelson  Stephens,  which  said  demurrer  has  been  disposed  of  by  an 
order  of  this  court,  held  September  24,  1887;  that  the  defendant 
Chauncey  R.  Shultis  has  appeared  by  P.  Cantine  as  his  attorney,  but 
has  not  interposed  any  answer  or  demurrer;  that  the  defendant 
John  N.  Gillis  has  appeared  by  George  W.  Weiant,  his  attorney,  but 
has  not  interposed  any  answer  or  demurrer;  that  all  the  defendants 
are  of  full  age. 


264  PARTITION. 


Art.  16.     Actual  Partition. 


That  this  action  is  brought  to  partition  real  property  situated  in 
the  City  of  Kingston,  Ulster  County;  that  an  order  of  reference  has 
been  granted  heretofore  herein  by  which  it  was  referred  to  C.  A. 
Van  Wagoner,  Esq.,  to  determine  and  report  as  to  the  interest  of 
the  several  parties  to  the  action  in  the  premises  sought  to  be  par- 
titioned, and  as  to  whether  the  same  could  be  partitioned,  and  such 
report  having  been  filed  wherein  he  sets  up  the  interest  of  the 
several  parties  and  the  several  incumbrances  thereon,  and  also  that 
said  premises  are  so  circumstanced  that  a  partition  thereof  can  be 
made  without  prejudice  to  the  owners  thereof;  and  it  further 
appearing,  by  a  certified  search  of  the  clerk  of  the  County  of 
Ulster,  that  there  are  certain  specific  and  general  liens  on  said 
premises : 

Now,  on  motion  of  John  E.  Van  Etten  (ISc  Son,  the  attorneys  of 
said  plaintillf,  and  after  hearing  Linson  &  Van  Buren,  attorneys  of 
the  defendant  Emma  Stephens,  it  is  ordered,  adjudged  and  decreed. 

That  the  rights,  shares  and  interests  of  the  parties  in  the  property 
mentioned  in  the  complaint  are  as  follows: 

That  the  plaintiff,  Nathan  R.  Nickerson,  is  entitled  to  an  undi- 
vided one-half  thereof,  subject  to  the  inchoate  right  of  dower  of  his 
wife,  the  defendant  Adelia  B.  Nickerson,  in  such  one-half. 

That  the  defendant  George  W.  Nickerson  has  a  specific  lien  on 
such  one-half  bv  way  of  a  mortgage. 

That  the    defendant  Emma   Stephens  is   entitled  to  an   undivided 

one-half  thereof. 

That  the  defendant  John  Cutwater,  as  executor  of  the  last  will 
and  testament  of  John  Polhemus,  deceased,  has  a  specific  lien  on 
such  one-half  of  Emma  Stephens,  by  way  of  mortgages.  That  the 
defendant  Chauncey  P.  Shultis  has  general  lien  on  such  one-half  of 
Emma  Stephens,  bv  way  of  judgments.  That  partition  be  made  of 
the  premises  mentioned  in  the  complaint  herein,  which  are  descri'.  ed 
as  follows:      (Here  insert  description.) 

That  Stephen  D.  Hood,  Jr.,  Daniel  T.  Van  Buren  and  McDonald 
Van  Wagonen,  Esq.,  three  reputable  and  disinterested  freeholders, 
are  hereby  appointed  commissioners  to  make  the  partition  herein 
directed  and  to  proceed  and  report  according  to  law. 

That  said  commissioners  shall  divide  the  said  premises  into  equal 
parts,  quantity  and  quality  relatively  considered,  and  that  they  allot 
to  the  plaintift',  Nathan  R.  Nickerson,  one  of  said  parts,  and  to  the 
defendant  Emma  Stephens  the  other  of  said  parts,  to  be  held  and 
enjoyed  by  the  said  parties  severally  according  to  their  rights  and 
interests  therein,  so  ascertained,  determined  and  declared  as  afore- 
said. That  each  party  to  the  action  is  hereby  required  to  produce 
and  have  with  the  said  commissioners,  or  a  majority  of  them,  for 
such  time  as  they  shall  deem  reasonable,  all  deeds,  writings,  surveys 
or  maps  relating  to  the  said  premises,  or  any  part  thereof. 

That  in  case  partition  of  said  premises  cannot  be  made  with  per- 
fect equality  between  the  said  parties,  according  to  their  respective 
rights  and  'interests  therein,  unless  compensation  be  made  by  one 
or  more  of  them  to  o^her  of  them  for  equality  of  partition,  then  the 
said  commissioners  shall  ascertain  and  report  the  proper  compensa- 


PARTITION.  26'y 


Art.  16.     Actual  Partition. 


tion  which  ought  to  be  made  for  equality  of  partition,  and  by  whom 
it  should  be  paid,  and  to  whom  it  ought  to  be  allowed. 

That  the  costs,  disbursements  and  referee's  fees,  stenographer's 
fees,  surveyor's  and  commissioner's  charges  and  clerk's  fees  shall 
be  borne  and  paid  by  the  respective  parties  as  follows:  Said  plaintiff 
shall  bear  and  pay  his  own  costs  and  one-half  of  all  fees,  expenses, 
charges  and  disbursements,  last  above  specified,  in  the  action,  and 
the  defendant  Emma  Stephens  shall  bear  and  pay  her  own  costs  and 
one-half  of  all  fees,  expenses,  charges  and  disbursements  in  the 
action  above  specifically  mentioned,  and  that  the  parties  entitled  to 
such  costs,  fees,  charges  and  expenses  have  execution  therefor, 
according  to  the  course  and  practice  of  this  court. 

That  any  party  to  this  action  may  apply  to  the  court  at  the  foot 
of  this  judgment  for  further  instructions. 

SAMUEL    EDWARDS, 
Justice  Supreme  Court. 


Precedent  for  Form  of  Oath  by  Commissioner. 

SUPREME  COURT. 


JOHN  HASKINS 


agst. 


MARY    HASKINS,   JAMES   C.   HASKINS, 
AND  LOUISA  M.  DURYEA. 


Stephen  D.  Hood,  D.  1'.  Van  Buren  and  McDonald  Van  Wagonen, 
commissioners  appointed  to  make  partition  herein  by  an  interlocu- 
tory judgment,  dated  January  12,  1888,  being  duly  sworn,  doth  each 
for  himself  depose  and  say,  that  he  will  faithfully,  honestly  and 
impartially  discharge  the  trust  reposed  in  him. 

(Jurat.)  (Signatures.) 

Sub.  3.   Report  of  Commissioners  and  Confirmation  of  Report. 

§§  1554,  1555,  1556. 
§  1554.  Report  of  commissioners. 

All  the  commissioners  must  meet  together  in  the  performance  of  any  of  their 
duties;  but  the  acts  of  a  majority  so  met  are  valid.  They,  or  a  majority  of 
them,  must  make  a  full  report  of  their  proceedings,  under  their  hands,  specify- 
ing therein  the  manner  in  which  they  have  discharged  their  trust,  describing 
the  property  divided,  and  the  share  or  interest  in  a  share,  allotted  to  each  party, 
with  the  quantity,  courses,  and  distances,  or  other  particular  description  of  each 
share,  and  a  description  of  the  posts,  stones,  or  other  monuments;  and  specify- 
ing the  items  of  their  charges.  Their  report  must  be  acknowledged  or  proved, 
and  certified,  in  like  manner  as  a  deed  to  be  recorded,  and  must  be  filed  in  the 
office  of  the  clerk. 


266 


PARTITION. 


Art.  i6.     Actual  Partition. 


§  1555.  Fees  and  expenses. 

The  fees  and  expenses  of  the  commissioners,  including  the  expense  of  a  sur-, 
vey,  when  it  is  made,  must  be  taxed  under  the  direction  of  the  court;  and  the 
amount  thereof  must  be  paid  by  the  plaintiff,  and  allowed  as  part  of  his  costs. 

§  1556.  Confirming  or  setting  aside  report. 

The  court  must  confirm  or  set  aside  the  report,  and  may,  if  necessary,  appoint 
new  commissioners,  who  must  proceed  as  directed  in  this  article 

The  following  section   of  the   Code  fixes   the  amount   of  the 

commissioners'  fees : 

§  3299.  A  surveyor,  employed  as  prescribed  by  law,  in  an  action  for  partition 
or  dower,  or  to  determine  dower,  is  entitled  to  five  dollars  for  each  day  actually 
and  necessarily  occupied  in  surveying,  laying  out,  marking  or  mapping  land 
therein.  Each  assistant,  so  employed,  is  entitled  to  two  dollars  for  each  day 
actually  and  necessarily  occupied  in  serving  under  the  surveyor's  direction. 
Each  commissioner,  appointed  as  prescribed  by  law,  to  make  partition  or  ad- 
measure dower,  is  entitled  to  five  dollars  for  each  day's  actual  and  necessary 
service. 

The  commissioners  must  look  to  plaintiff  for  their  fees;  they 
cannot  attach  plaintiff's  attorney  for  non-payment.  Lanioiireux 
V.  Morris,  4  How.  245.  On  an  application  to  adjust  the  fees  and 
expenses  of  commissioners,  the  number  of  days'  service  actually 
and  necessarily  rendered  by  each  commissioner,  and  the  actual 
■disbursements  made  by  them,  must  be  shown  by  affidavit. 
Campbell  V.  Cajnpbell,  48  How.  255. 

The  report  of  the  commissioners  will  be  set  aside  on  same 
grounds  as  verdict  of  a  jury.  Livmgstoii  v.  Clarkson,^  Edw.  Ch. 
596;  Doitbleday  v.  Neivton,  9  How.  71. 

The  plaintiff,  in  an  action  of  partition,  is  liable  for  services  of 
a  surveyor,  pursuant  to  the  employment  of  a  referee  in  an  action 
which,  upon  plaintiff's  motion,  is  discontinued,  upon  condition 
that  the  plaintiff  pay  costs  and  expenses.  The  surveyor  is  not 
limited  to  statutory  fees,  but  entitled  to  the  value  of  his  services. 
Mcscrolc  V.  Fiirmaii,  38  Hun,  355. 

Commissioners  in  partition  have  not  the  power,  in  order  to 
effect  an  equal  division,  to  direct  the  partial  destruction  of  one 
of  the  buildings  on  the  property  which  is  the  subject  of  the  suit. 
Vailv.  Vail,  23  St.  Rep.  574. 


PARTITION. 


267 


Art.  16.     Actual  Partition. 


Precedent  for  Report  of  Commissioners  —  Actual  Partition. 

SUPREME  COURT  — Saratog.a.  County. 


Charles  S.  Weston 


azsf. 


137  N.  Y.  119. 


Mary  R.  Stoddard,  Abiel  .Stoddard,  L.  Allen  Car- 
penter, Charles  W.  Pollard,  Pamelia  Weston, 
James  E.  Pollard,  Cora  F.  Pollard,  Harriet  A. 
Day,  Stella  P.  Burpee,  Charles  H.  Lee,  Sarah  L. 
McOmber,  Fannie  Smith,  Sarah  Weston,  Belle 
Howe,  Lucy  A.  Allen,  Gideon  Edwin  Lee,  Laura 
A.  Henry,  Nancy  H.  Lee,  Melissa  B.  Lee,  John 
Daig  and  Bridget  Daig,  his  wife;  Reuben  L. 
Curtis,  Samuel  Burpee,  Edward  B.  Clark  and 
Minnie  A.  Clark,  his  wife,  and  Florence  Burpee. 


In  pursuance  of  an  interlocutory  judgment  made  in  the  above- 
entitled  action  and  entered  the  15th  day  of  September,  1890,  the 
undersigned  commissioners  in  partition  do  report  and  return  that 
having  been  first  duly  sworn,  and  having  severally  taken  the  oath 
that  we  would  honestly  and  impartially  execute  the  trust  reposed  in 
us  and  make  partition  as  directed  by  the  court,  we  have  carefully 
examined  the  premises  described  in  the  complaint  in  this  action  and 
caused  the  said  premises  to  be  surveyed  and  have  made  partition 
thereof  between  the  said  parties  according  to  their  respective  rights 
and  interests  therein  as  the  same  have  been  ascertained,  determined 
and  declared  by  the  courts  as  follows : 

We  have  divided  the  premises  into  four  equal  parts  and  set  off  to 
the  plaintiff  and  the  defendants  L.  Allen  Carpenter,  Charles  W. 
Pollard,  Pamelia  Weston,  James  E.  Pollard,  Cora  F.  Pollard,  Harriet 
A.  Day,  Stella  P.  Burpee,  Charles  H.  Lee,  Sarah  L.  McOmber, 
Fannie  Smith,  Sarah  Weston,  Belle  Howe,  Lucy  A.  Allen,  (iideon 
Edwin  Lee,  Laura  A.  Henry,  Nancy  H.  Lee  and  Melissa  B.  Lee, 
heirs  of  Charles  Lee  and  Samuel  A.  Weston  as  a  whole  one  un- 
divided one  of  said  parts,  to  wit:  one-quarter  of  the  whole  of  said 
premises  as  directed  by  said  judgment,  said  one-quarter  being  de- 
scribed on  the  map  hereto  annexed  as  "  six  and  forty-three  one 
hundredths  acres  set  apart  to  plaintiff  Charles  S.  Weston  and  de- 
fendants, heirs  of  Charles  Leeand  Samuel  A.  Weston;"  and  particu- 
larly described  as  follows: 

(Insert  description.) 

And  we  further  certify  and  report  that  the  items  of  expenses  and 
charges  attending  the  said   partition  including  our  fees  as  com- 
missioners are  as  follows: 
To  services   of  commissioner,  Charles  H.  Sturges,  5  days.     $25  00 
"  "  Arthur  D.  Seavey,  5  days...        25   00 

"  "  Joseph  D.  Baucus,  5  days..        25   00 


268 


PARTITION. 


Art.  i6.      Actual   Partition. 


Charges,  expenses  and  disbursements  of  surveyor, 
To  horse  hire  to  view  property 


$^5   ^5 
4  oo 


In  witness  whereof  we,  the  said  commissioners,  have  hereunto  set 
our  hands  and  seals  the  20th  day  of  August,  1891. 

C.  H.  STURGES.  [L.  S.] 
JOS.  D.  BAUCUS.  [L.  S.] 
ARTHUR  D.  SEVEY.   [L.  S.J 


Precedent  for  Report  of  Commissioners  in  Partition. 

SUPREME  COURT. 


NATHAN   R.  NICKERSON 
EMMA  STEPHENS,  etc. 


To  the  Supreme  Court  of  the  State  of  New  York  : 

In  pursuance  of  and  in  obedience  to  an  order  of  this  court,  made 
in  the  above  case,  dated  the  7th  day  of  October,  1887,  the  under- 
signed commissioners  in  partition  do  hereby  respectfully  report  and 
return :  That  having  been  first  duly  sworn,  and  having  severally  taken 
the  oath  that  we  would  honestly  and  impartially  execute  the  trust 
reposed  in  us,  and  make  partition  as  directed  by  the  court,  we 
have  carefully  examined  the  premises  described  in  the  complaint  in 
this  action,  and  caused  the  said  premises  to  be  surveyed,  and  have 
made  partition  thereof  between  the  said  parties  according  to  their 
respective  rights  and  interests  therein  as  the  same  have  been  ascer- 
tained, determined  and  declared  by  the  court,  as  follows: 

We  have  divided  the  whole  premises  into  two  equal  parts,  quality 
and  quantity  relatively  considered,  which  are  designated  on  the  map 
hereto  annexed  by  the  letters  "  CC  "  and  "  BB,"  and  the  division 
thus  made,  in  our  judgment,  is  the  most  beneficial,  under  all  the 
circumstances,  that  could  be  made  of  such  premises. 

We  further  report  that  we  have  set  off  in  severalty  to  the  plaintiff, 
Nathan  R.  Nickerson  (here  insert  description). 

We  have  also  set  off  in  severalty  to  the  defendant,  Emma  Stephens 
(here  insert  description). 

(Here  insert  any  specific  liens  on  the  property  and  to  whom  ap- 
portioned.) 

And  we  further  certify  and  report  that  the  items  of  expenses  and 
charges  attending  the  said  partition,  including  our  fees  as  commis- 
sioners, are  as  follows: 

To  services   of  commissioner,  D.  T.  Van  Buren,  4  days....  $20  00 

"                     "                 Stephen  D.  Hood,  4  days...  20  00 

"                      "                 McD.  Van  Wagoner,  4  days.  2000 

Charges,  expenses  and  disbursements  of  surveyor 5°  0° 


PARTITION.  269 


Art.  16.     Actual  Partition. 


To  paid  notary  public  three  acknowledgments 75 

To  horse  hire  to  view  property . .    .  ^ $3  00 


In  witness  whereof  we,  the  said  commissioners,  have  hereunto 
[L.  S.]     set  our  hands  and  seals,  29th  day  of  November,  1882. 

(Signatures.) 

Sub.  4.   Final  Judgment  for  Actual  Partition.     §§  1557-1560. 

^  1557.  Final  judgment  on  report ;  effect  thereof. 

Upon  the  confirmation,  by  the  court,  of  the  report  of  the  commissioners  mak- 
ing partition,  final  judgment,  that  the  partition  be  firm  and  effectual  forever, 
must  be  rendered,  which  is  binding  and  conclusive  upon  the  following  persons  : 

1.  The  plaintiff  ;  each  defendant  upon  whom  the  summons  was  served,  either 
personally,  or  without  the  State,  or  by  publication,  pursuant  to  an  order  obtained 
for  that  purpose,  as  prescribed  in  chapter  fifth  of  this  act ;  and  the  legal  repre- 
sentatives of  each  party,  specified  in  this  subdivision.  So  much  of  section  445  of 
this  act,  as  requires  the  court  to  allow  a  defendant  to  defend  an  action,  after  final 
judgment,  does  not  apply  to  an  action  for  partition. 

2.  Each  person  claiming  from,  through,  or  under  such  a  party,  by  title  accru- 
ing after  the  filing  of  the  judgment-roll,  or  after  the  filing,  in  the  proper  county 
clerk's  office,  of  a  notice  of  the  pendency  of  the  action,  as  prescribed  in  article 
ninth  of  this  title. 

3.  Each  person,  not  in  being  when  the  interlocutory  judgment  is  rendered, 
who,  by  the  happening  of  any  contingency,  becomes  afterwards  entitled  to  a 
beneficial  interest  attaching  to,  or  an  estate  or  interest  in,  a  portion  of  the  prop- 
erty, the  person  first  entitled  to  which,  or  other  virtual  representative  whereof 
was  a  party  specified  in  the  first  subdivision  of  this  section. 

But  this  section  does  not  apply  to  a  party,  whose  right  and  interest  are  ex- 
pressly reserved  and  left  unaffected,  as  prescribed  in  section  1539  of  this  act,  or 
to  any  person  claiming  from,  through  or  under  such  party. 

^  1558.  Judgment  must  direct  delivery  of  possession. 

The  final  judgment  must  also  direct  that  each  of  the  parties,  who  is  entitled 
to  possession  of  a  distinct  parcel  allotted  to  him,  be  let  into  the  possession 
thereof,  either  immediately,  or  after  the  determination  of  the  particular  estate, 
as  the  case  requires. 

?  1559.  Costs;  how  awarded.     Id.;  against  unknown  parties. 

The  final  judgment  for  the  partition  of  the  property,  must  also  award,  that 
each  defendant  pay  to  the  plaintiff  his  proportion  of  the  plaintiff's  costs,  includ- 
ing the  extra  allowance.  The  sum  to  be  paid  by  each  must  be  fixed  by  the 
court,  according  to  the  respective  rights  of  the  parties,  and  specified  in  the  judg- 
ment. If  a  defendant  is  unknown,  his  proportion  of  the  costs  must  be  fixed  and 
specified  in  like  manner.  An  execution  against  an  unknown  defendant  may  be 
issued  to  collect  the  costs  awarded  against  him,  as  if  he  was  named  in  the 
judgment;  and  his  right,  share,  or  interest  in  the  property  may  be  sold  by  vir- 
tue thereof,  as  if  he  was  named  in  the  execution. 


270 


PARTITION. 


Art.  16.     Actual  Partition. 


§  1560.  Sale  of  property  ;  when  directed. 

If  the  commissioners,  or  a  majority  of  them,  report  that  the  property,  or  a 
particular  lot,  tract,  or  other  portion  thereof,  is  so  circumstanced,  that  a  parti- 
tion thereof  cannot  be  made,  without  great  prejudice  to  the  owners  thereof,  the 
court,  if  it  is  satisfied  that  the  report  is  just  and  correct,  may  thereupon,  except 
as  otherwise  expressly  prescribed  in  this  article,  modify  the  interlocutory  judr;- 
ment,  or  render  a  supplemental  interlocutory  judgment,  reciting  the  facts,  and 
directing  that  the  property,  or  the  distinct  parcel  thereof  so  circumstanced,  be 
sold  by  a  referee,  designated  in  the  judgment,  or  by  the  sheriff. 

Where  an  actual  partition  of  land  is  ordered,  plaintiff's  right  to 
costs  arises  upon  final  judgment.  Saffrcvi  v.  Saffron,  1 1  St.  Rep. 
471,  citing  Davis  v.  Davis,  3  St.  Rep.  163,  and  §  1579  of  the  Code. 

Although  by  §  1544  an  issue  of  fact  in  partition  was  triable  by 
a  jury,  it  does  not  determine  that  costs  follow  as  a  matter  of 
course.  Costs  may  be  awarded  in  the  discretion  of  the  court. 
Weston  V.  Stoddard,  42  St.  Rep.  76,  citing  Henderson  v.  Seott,  43 
Hun,  22,  and  overruling  Daz'is  v.  Davis,  3  St.  Rep.   163. 

In  partition  suits  where  an  actual  partition  of  the  premises  is 
decreed,  the  costs  of  the  complainant,  and  all  the  defendants  who 
have  appeared  in  the  cause  are  to  be  taxed  as  between  party  and 
party,  and  the  aggregate  amount  of  the  several  bills  apportioned 
and  charged  upon  parties  to  the  suit  according  to  their  rights  and 
interests  in  the  premises,  and  the  parties  whose  proportionate 
part  of  the  whole  costs  are  entitled  to  execution  against  those 
whose  taxed  bills  are  less;  Titbits  v.  Tibbits,  7  Paige,  204;  but 
the  attorney  for  plaintiff  acquires  a  lien  for  his  disbursements 
upon  the  share  of  plaintiff  in  the  property,  in  suit  of  which  plain- 
tiff cannot  divest  him  by  an  assignment  of  his  interest  pending 
the  action.  CreigJiton  v.  Ingersoll,  20  Barb.  541.  Where  the 
complainant  by  an  unfounded  claim  causes  litigation,  he  will  be 
charged  with  the  additional  costs  incurred  thereby.  Hamcrsley 
V.  Hauiersley,  7  N.  Y.  Leg.  Obs.  127;  Crandall  v.  Hoysradt,  3 
Sandf.  Ch.  40.  Where,  for  any  cause,  when  actual  partition  is 
made  some  of  the  parties  are  found  not  entitled  to  any  portion 
of  the  land,  they  should  not  be  charged  with  costs.  Tanner  v. 
Niles,  I  Barb.  560. 

For  further  authorities  and  reference  to  the  provisions  of  the 
Code  as  to  costs,  see  §  1579. 


PARTITION. 


271 


Art.  if).      Actual   Partition. 


137  N.  Y.  119. 


Precedent  for  Final  Judgment  —  Actual  Partition. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  Chambers  of 
Hon.  John  R.  Putnam  in  the  village  of  Saratoga  Springs,  N. 
Y.,  on  the  ist  day  of  January,  1892. 

Present  Hon.  John  R.  Putnam,  Justice. 

Charles  S.  Weston 

agst. 

Mary  R.  Stoddard,  Abiel  Stoddard,  L.  Allen  Car- 
penter, Charles  W.  Pollard,  Pamelia  Weston, 
James  E.  Pollard,  Cora  F.  Pollard,  Harriet  A. 
Day,  Stella  P.  Burpee,  Charles  H.  Lee,  Sarah  L. 
McOmber,  Fannie  Smith,  Sarah  Weston,  Belle 
Howe,  Lucy  A.  Allen,  Gideon  Edwin  Lee,  Laura 
A.  Henry,  Nancy  H.  Lee,  Melissa  P.  Lee,  John 
Daig  and  Bridget  Daig,  his  wife,  Reuben  L. 
Curtis,  Samuel  Burpee,  Edward  B.  Clark  and 
Minnie  A.  Clark,  his  wife,  and  Florence  Burpee, 

This  action  having  been  brought  on  to  be  heard  upon  the  report 
of  Charles  H.  Sturges,  Joseph  D.  Baucus  and  Arthur  D.  Seavey, 
commissioners  appointed  by  a  judgment  of  this  court,  and  on  read- 
ing and  filing  said  report,  which  bears  date  the  20th  day  of  August, 
1891,  by  which  it  appears  that  the  said  commissioners  have  made 
partition  of  the  premises  described  in  the  complaint  in  this  action 
between  the  parties  according  to  their  respective  rights  and  in- 
terests therein,  as  the  same  have  been  ascertained,  declared  and 
determined  by  this  court,  and  by  which  said  partition  the  said  com- 
missioners have  divided  the  premises  into  four  equal  parts  and  set 
off  to  the  plaintiff  and  defendants  L.  Allen  Carpenter,  Charles  \V. 
Pollard,  Pamelia  Weston,  James  E.  Pollard,  Cora  F.  Pollard,  Harriet 
A.  Day,  Stella  P.  Burpee,  Charles  H.  Lee,  Sarah  L.  McOmber, 
Fannie  Smith,  Sarah  Weston,  Belle  Howe,  Lucy  A.  Allen,  (iideon 
Edwin  Lee,  Laura  A.  Henry,  Nancy  H.  Lee,  Melissa  P.  Lee,  heirs 
of  Charles  Lee  and  Samuel  A.  Weston,  as  a  whole  one  undivided  one 
of  said  parts,  to  wit:  One-quarter  of  the  whole  of  said  premises  as 
directed  by  said  judgment,  said  one-quarter  being  designated  and 
described  on  the  map  hereto  annexed  as  "  6jYo-  acres  set  apart 
to  plaintiff  Charles  S.  Weston  and  defendants,  heirs  of  Charles  Lee 
and  Samuel  A.  Weston,"  and  particularly  described  as  follows: 

(Lisert  description.) 
Now,  on  motion  of  Winsor  B.  French,  attorney  for  the  plaintiff, 
and  after  hearing  Charles  S.  Lester  of  counsel  for  the  defendants 
Mary  R.  Stoddard,  Abiel  Stoddard,  John  Daig  and  Bridget  Daig, 
his  wife,  Reuben  L.  Curtis,  Samuel  Burpee,  Edward  B.  Clark  and 
Minnie  Clark,  his  wife,  and  Florence  Burpee,  it  is  ordered,  adjudged 


2/2  PARTITION. 


Art.  i6.     Actual  Partition. 


and  decreed  that  the  said  report  and  all  things  therein  contained  do 
stand  ratified  and  confirmed,  and  that  the  partition  so  made  be  firm 
and  effectual  forever. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  plaintiff 
and  the  said  defendants,  heirs  of  Charles  Lee  and  Samuel  A.  Weston, 
be  and  they  are  entitled  to  the  possession  of  the  said  premises 
hereby  set  apart  to  them,  and  that  they  be  let  into  the  possession 
thereof. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  sum  of 
$559.44,  being  the  costs  of  the  plaintiff  and  his  disbursements  taxed 
by  the  clerk  of  the  court,  which  includes  the  sum  of  $200  additional 
allowance  hereby  granted  to  the  plaintiff,  shall  be  a  lien  upon  the 
said  premises  described  in  the  interlocutory  judgment  herein  and  be 
paid  three-fourths  by  the  defendant  Mary  R.  Stoddard  and  one- 
fourth  by  the  owners  of  the  remaining  one-fourth. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  sum  of 
one  hundred  and  twenty-  five  dollars  further  additional  allowance 
granted  to  the  plaintiff,  shall  be  paid  by  and  be  a  lien  upon  the 
three-fourths  of  the  property  allotted  to  the  said  defendant  Mary  R. 
Stoddard,  and  that  the  plaintiff  have  execution  therefor. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  defend- 
ant Mary  R.  Stoddard  recover  against  the  plaintiff  her  costs  ad- 
justed at  one  hundred  thirty-six  and  fifty-six  one  hundredths  dollars, 
and  that  the  same  be  a  lien  upon  the  one-fourth  mterest  in  the  premi- 
ses other  than  that  allotted  to  the  said  Mary  R.  Stoddard. 

JOHN    R.    PUTNAM, 

J.  S.  C. 

Precedent  for  Final  Judgment  for  Actual  Partition. 

SUPREME  COURT— Special  Term. 


NATHAN  R.  NICKERSON 

agsL 

EMMA    STEPHENS   and    NELSON    STE- 
PHENS, HER  Husband,  etc. 


This  action  having  been  brought  on  to  be  heard  upon  the  report 
of  Stephen  D.  Hood,  Daniel  T.  Van  BurenandMcD.  Van  Wagoner, 
commissioners  appointed  by  an  order  of  this  court,  and  on  reading 
and  filing  said  report,  which  bears  date  the  29th  day  of  November, 
1882,  by  which  it  appears  that  the  said  commissioners  have  made 
partition  of  the  premises  described  in  the  complaint  in  this  action, 
between  the  parties,  according  to  their  respective  rights  and  in- 
terests therein,  as  the  same  have  been  ascertained,  declared  and 
determined  by  this  court,  and  by  which  said  partition  the  said  com- 
missioners have  divided  the  whole  of  said  premises  into  two  allot- 
ments of  equal  value,  and  have  set  off  in  severalty  to  the  said  plain- 
tiff, Nathan  R.  Nickerson,  one  of  the  said  allotments  bounded  and 
described  as  follows  (here  insert    description  of  lots    so    set   off); 


PARTITION.  273 


Art.  16.      Actual   Partition. 


and  also  by  which  partition  the  said  commissioners  have  set  off  in 
severalty  to  the  defendant  Emma  Stephens  the  other  of  said  allot- 
ments bounded  and  described  as  follows:  (Here  insert  description 
of  said  allotment.) 

Now,  on  motion  of  John  J.  Linson,  attorney  for  the  plaintiff,  and 
Howard  Chipp,  Jr.,  attorney  for  defendant,  it  is  ordered  and 
adjudged  that  the  said  report,  and  all  things  therein  contained,  do 
stand  ratified  and  confirmed,  and  that  the  partition  so  made  be  firm 
and  effectual  forever. 

And  it  is  further  ordered,  adjudged  and  decreed  that  the  said 
Nathan  R.  Nickerson  and  wife  and  the  said  Emma  Stephens,  do  each 
execute  under  their  hands  and  seals,  and  acknowledge  and  deliver  to 
the  other,  a  deed  of  release  and  quitclaim  of  the  parcel  of  land  set 
off  to  each  in  severalty  as  aforesaid. 

And  it  is  further  ordered  and  adjudged  that  the  said  Nathan  R. 
Nickerson  be  and  he  is  entitled  to  the  possession  of  the  said  premi- 
ses hereby  set  apart  to  him  in  severalty,  and  that  he  be  immediately 
let  into  the  possession  thereof,  and  that  the  said  Emma  Stephens 
be  and  she  is  entitled  to  the  possession  of  the  said  premises  hereby 
set  apart  to  her  in  severalty  and  that  she  be  immediately  let  into 
possession. 

And  it  is  further  ordered  and  adjudged  that  all  liens  and  incum- 
brances which  were  a  charge  upon  the  undivided  interest  of  the  said 
Nathan  R.  Nickerson,  shall  hereafter  be  a  lien  and  charge  only  upon 
that  part  of  said  premises  hereby  set  apart  to  said  Nathan  R.  Nicker- 
son in  severalty,  and  that  all  liens  and  incumbrances  which  were  a 
charge  upon  the  undivided  interest  of  the  said  Emma  Stephens  shall 
hereafter  be  a  lien  and  charge  only  on  that  part  of  said  premises 
hereby  set  apart  to  the  said  Emma  Stephens.  And  it  is  further 
■ordered  and  adjudged  that  the  sum  of  $1,560,  being  the  costs  of  the 
plaintiff,  and  his  disbursements,  which  includes  the  sum  of  $1,000  ad- 
ditional allowance  hereby  granted,  shall  be  a  lien  upon  the  premises 
hereby  set  apart  to  the  plaintiff,  over  and  taking  precedence  of  the 
rights  or  liens  of  any  of  the  parties  to  this  action,  and  execution 
may  issue  thereon. 

And  the  sum  of  $1,500  being  the  costs  of  the  defendant  Emma 
Stephens,  and  her  disbursements,  which  includes  the  sum  of  $1,000 
additional  allowance  hereby  granted,  shall  be  a  lien  upon  the  premi- 
ses hereby  set  apart  to  said  defendant  Emma  Stephens,  over  and 
taking  precedence  of  the  rights  or  liens  of  any  of  the  parties  to  this 
action  and  execution  mav  be  issued  thereon. 

A.  B.  PARKER, 

J.  S.  C. 

Sub.  5.  Compensation  for  Eyu.'\LiTV  of   Partition,      g  1587. 

§  1587.  Compensation  to  equalize  partition. 

Where   it  appears   that   partition   cannot  be    made   equal    between  the   parties, 

according  to  their  respective  rights,  without  prejudice  to  the  rights  or  interests 

■or  some  of  them,  the  final  judgment  may  award  compensation  to  be  made  by 

one  party  to  another  for  equality  of  partition.      But  compensation   cannot  be  so 

[Special  Actions  —  iS.] 


274  PARTITION. 


Art.  i6.     Actual   Partition. 


awarded  against  a  party  who  is  unknown,  or  whose  name  is  unknown.  Nor 
can  it  be  awarded  against  an  infant,  unless  it  appears  that  he  has  personal 
property  sufficient  to  pay  it,  and  that  his  interests  will  be  promoted  thereby. 

One  tenant  in  common  may  be  allowed  a  .sum  of  money  from 
another  or  others  to  equalize  the  interests.  Larkin  v.  Mann,  2 
Paige,  27;  Smith  v.  Smith,  10  Paige,  470.  This  compensation  is 
termed  owelty,  and  is  a  lien  on  the  share  to  equalize  which  it  is 
granted,  but  it  cannot  be  enforced  out  of  the  other  property  of 
the  tenant  in  common.  It  is  granted  on  the  principle  that  the 
law  cannot  contemplate  the  injustice  of  taking  property  from  one 
person  and  giving  it  to  another,  without  an  equivalent  or  a  suffi- 
cient security  for  it,  and  the  lien  is  said  to  have  priority  over 
liens  existing  again.st  the  tenant  against  whom  the  owelty  is 
awarded.  Freem.  Co-tenancy  and  Partition,  §  507.  And  the 
court  will  not  set  aside  a  report  requiring  a  payment  to  equalize, 
unless  the  power  has  been  abused  or  so  exercised  as  to  operate 
unjustly.  Post  v.  Post,  65  Barb.  192.  When  the  common  lands 
come  to  be  divided,  an  opportunity  is  afforded  to  give  the  co-ten- 
ant, who  has  enhanced  the  value  of  a  parcel  of  the  premises  by 
his  industry  or  expenditures,  by  allotting  to  him  the  parcel  so 
enhanced  in  value,  or  so  much  as  represents  his  share,  and  it  is 
the  duty  of  equity  so  to  do,  so  far  as  convenient  with  equitable 
partition.  Walter  v.  Walter,  3  Abb.  N.  C.  12.  Where  one 
believes  himself  to  be  the  sole  owner,  and  he  or  his  grantee 
makes  permanent  improvements,  they  are  entitled,  on  subsequent 
partition  with  one  who  proves  to  be  a  co-tenant,  to  have  improve- 
ments set  off  on  their  share  or  allowance.  Conklin  v.  Conklin,  3 
Sandf.  Ch.  64;  St.  Felix  v.  Rankin,  3  Edw.  323;  Town  v.  Need- 
ham,  3  Paige,  545;  Ford  v.  Knapp,  102  N.  Y.  135. 

But  one  of  several  tenants  who  maintains  proceedings  for  the 
protection  of  the  estate,  on  the  promise  of  the  others  to  share 
the  expense,  does  not  acquire  thereby  a  lien,  for  disbursements 
so  incurred,  against  their  interests  in  the  estate  which  can  be 
recognized  in  his  action  for  partition.  Biilen  v  Bnrdell,  1 1  Abb. 
381.      Contra,  Hitchcock  v.  Skinner,  Hoff.  Ch.  21. 

It  is  also  said,  in  Jackson  v.  Bradt,  2  Cai.  302,  that  one  entering 
under  a  person  claiming  the  whole  in  severalty  is  not  entitled  to 
compensation  for  improvements.  The  tenant  in  common  will 
only  be  allowed  for  useful,  not  for  ornamental,  improvements. 
Hitchcock  V.  Skinner,  Hoff.  Ch.  21.     For  form  of  order  of  refer- 


PARTITIOX.  275 

Art.  16.      Actual   Partition. 


ence  to  take  account  of  rents  and  profits,  and  expenses  incurred 
by  plaintiff,  see  this  case. 

It  was  said,  in  Green  v.  Putnai/i.  1  Barb.  50,  that  where  one 
tenant  in  common  lays  out  money  in  improvements,  although  a 
lien  is  not  created,  equity  will  not  grant  a  partition  without  suit- 
able compensation.  It  is  not  necessary,  for  the  party  making  the 
improvements,  to  show  the  assent  of  his  co-tenants  to  such  im- 
provements or  promise  to  contribute  to  the  expense.  In  Taylor 
V.  Baldwin,  10  Barb.  582;  Putnam  v,  Ritchie,  6  Paige,  390, 
collating  cases  from  English  reports,  and  those  of  Massachusetts, 
it  is  said  that  it  does  not  appear  to  be  well  settled  that  a  tenant  in 
common  can  make  repairs  and  charge  his  co-tenant  in  the  absence 
of  any  contract ;  that  he  cannot  do  so  without  first  requesting 
his  co-tenant  to  unite  in  such  improvements,  and  that  one  tenant 
is  not  liable  for  repairs  made  by  another,  except  by  express  con- 
tract. This  was  not  an  action  of  partition,  but  a  proceeding  as  to 
surplus  moneys  arising  in  foreclosure.  Then  followed  Scott  v. 
Guernsey,  48  N.  Y.  106,  affirming  10  Barb.  163,  holding  that 
where  a  remainderman,  with  the  consent  of  the  life  tenant  and 
full  knowledge  of  her  limited  title  and  without  the  consent  of  the 
other  remaindermen,  has  erected  buildings  upon  the  premises  par- 
titioned, he  is  not  entitled  to  compensation  from  his  co-tenants 
therefor  upon  partition,  and  if  such  remainderman  has  received 
rents  from  such  buildings,  after  the  death  of  the  life  tenant,  he 
must  account  therefor.  That  the  party  making  the  claim  for 
allowance  for  improvements  was  not  within  any  of  the  adjudged 
cases  where  relief  was  granted  in  partition  for  moneys  expended 
in  improvements  by  one  of  several  tenants  in  common.  That  if 
the  property  improved  has  been  really  enhanced  in  value  the  ten- 
ant making  the  improvements  will  get  a  portion  of  the  benefits, 
but  that  the  owner  cannot  be  called  upon  to  afford  any  indemnity 
or  compensation  for  money  expended  by  another  for  improve- 
ments, if  that  other  had  full  knowledge  of  the  risk  he  ran  when 
he  expended  the  money; 

In  Coakleyv.  Mahar,  36  Hun,  157,  an  action  brought  to  recover 
one-half  of  the  rent  of  certain  premises  owned  in  common,  the 
rents  of  the  whole  property  having  been  received  by  defendant, 
it  was  held  that  defendant  was  not  entitled  to  have  the  cost  of 
improvements,  which  were  made  by  him  without  the  assent  of 
his  co-tenant,  allowed  in  reduction  of  the  amount  due   from  him 


2/6  PARTITION. 


Art.  i6.     Actual  Partition. 


for  rent  collected ;  and  it  is  said,  upon  the  authority  of  Scott  v. 
Guernsey,  48  N.  Y.  106,  supra,  and  Ford  v.  Knapp,  below,  then  not 
yet  reversed,  102  N.  Y.  133,  that  it  is  well  settled  in  this  State 
that  a  tenant  in  common  cannot  recover  from  a  co-tenant  the  ex- 
pense of  improvements  made  unless  the  co-tenant  assented  to  the 
improvements.  In  Prentice  v.  Jansen,  79  N.  Y.  478,  it  is  held 
that  the  court  has  power  in  partition,  where  plaintiff  made  repairs 
and  erected  a  new  building,  and  defendant  acquiesced,  to  charge 
the  .share  of  such  defendant  with  its  proportion  of  the  expendi- 
tures. 

In  Ford  v.  Knapp,  102  N.  Y.  133,  sjtpra,  on  appeal  to  the  Court  of 
Appeals,  c'xtmg Heivlett  v.  Wood,  62  N.  Y.  75,  it  was  held  that  "the 
rule  which  takes  from  one  co-tenant  the  fruits  of  his  thrift  and  enter- 
prise and  adds  it  to  the  unthrift  and  neglect  of  another;  which 
loads  upon  industry  and  ability  the  losses  and  burdens  of  idleness 
or  ill-  fortune ;  which  ties  up  property  from  improvement  and 
looks  contented  upon  rot  and  decay ;  is  a  rule  which  sometimes 
the  rigid  and  inelastic  jurisdiction  of  a  court  of  law  may  adopt 
from  necessity,  but  is  without  excuse  in  a  court  of  equity."  It  is 
said  that  a  co-tenant,  out  of  actual  occupation,  asking  the  aid  of 
a  court  of  equity  for  partition  against  a  co-tenant  who  has  made 
improvements  upon  the  property,  is  entitled  to  relief  only  in  con- 
sideration that  any  equities  thereby  arising  shall  be  taken  into 
consideration.  The  case  of  Scott  v.  Guernsey  is  referred  to  and 
distinguished ;  every  case  must  be  examined  upon  its  own  facts 
and  surroundings;  and  those  may  occur  in  which  such  an 
allowance  would  be  inequitable.  The  decision  in  31  Hun,  522, 
is  reversed,  and  the  case  sent  back  for  a  division  of  the  proceeds 
upon  the  principle  stated,  and  for  an  accounting  of  the  incomes 
and  profits.  Defendants  in  possession  should  be  credited  with 
the  share  of  taxes  paid  for  the  benefit  of  their  co-tenants,  but 
not  for  the  insurance  paid  unless  for  some  reason  which  the  case 
does  not  disclose.  See,  also,  citation  of  authorities  in  briefs  of 
counsel. 

Improvements  made  by  a  tenant  in  common  may  present 
equities,  but  an  allowance  therefor  should  not  be  made  where 
there  is  nothing  to  justify  it  in  the  evidence,  and  where  it  does 
not  appear  that  the  repairs  and  improvements  were  made  after 
the  party  claiming  them  became  a  tenant  in  common.  Hulse  v. 
Hulse,  17  Civ.  Pro.  R.  92;  s.  C.  23  St.  Rep.  123. 


PARTITION. 


277 


Art.  16.      Actual   Partition. 


It  is  not  proper  to  charge  a  tenant  in  common  with  rental 
for  the  use  of  the  property  unless  it  was  to  the  exclusion  of 
the  others  entitled  to  such  property.  RicJi  v.  Rich,  19  St.  Rep. 
384- 

An  action  may  be  maintained  by  one  tenant  in  common  of  a 
leasehold  estate  for  the  partition  thereof,  and  where,  at  the  time 
of  trial,  the  estate  for  years  has  terminated,  the  action  may  be 
continued  for  an  accounting  for  rents  and  profits  received  by  the 
defendant.  Waltlicr  v.  Rcgnault,  31  St.  Rep.  "766;  s.  c.  9  N.  Y. 
Supp.  849,  56  Hun,  560. 


CHAPTER  III. 

DOWER.* 

PAGE. 

Article  i.  The    right  of   dower.      Sec.    1604.    L.   1896,  chap. 

547 279 

2.  Limitationof  the  action  by  lapse  of  time.    Sec.  1596.   308 

3.  The  remedy  and  parties  to  the  action.     Sees.  1597, 

1598,  1599 ;••   310 

4.  Pleadings  and   miscellaneous   matters  of   practice. 

Sees.  1605,   1606,  1616,  1625 311 

5.  Interlocutory     judgment     for     admeasurement    of 

dower.     Sec.  1607 319 

6.  Commissioners,    their    powers,  duties   and    report. 

Sees.  1608-1612 322 

7.  What    damages   may  be   recovered   in   the    action. 

Sees.  1600,  1601,  1602,   1603 328 

8.  Agreement  to  accept  gross  sum  and   proceedings 

thereon.     Sees.  1617-1624.     Rule  70 331 

9.  Final  judgment  and  its  effect.     Sees.    1613,    1614, 

1615 334 


Sections  of  the  Code  of  Procedure  and  Where  Found  in  this 

Chapter. 

gj.(,  ART.   PAGE. 

1596.  Limitation  of  action  for  dower 2  305 

1597.  Against  whom  action  to  be  brought 3  3io 

1598.  Who  may  be  joined  as  defendants 3  31° 

1599.  Id.;  where  defendants  claim  in  severalty 3  3io 

1600.  Damages  may  be  recovered;  how  estimated 7  328 

1601.  Id. ;  in  action  against  alienee  of  husband 7  328 

1602.  Id. ;  where  several  parcels,  etc 7  329 

1603.  Id.;  against  heirs,  etc.,  aliening  land 7  329 

1604.  Action  barred  by  assignment  of  dower i  329 

1605.  Collusive  recovery  not  to  prejudice  infant 4  3" 

1606.  Complaint 4  3ti 

1607.  Interlocutory  judgment  for  admeasurement 5  3^9 

1608.  Oath  of  commissioners,  etc. ;  removal;  filling  vacancy 6  322 

1609.  Dower,  how  administered ^  322 

1610.  Report  thereupon °  323 

1611.  Setting  aside  report "  323 

*The  law  of  Dower  is  treated,  Scribner  on  Dower,  Cameron  on  Dower, 
and,  also,  American  and  English  Encyclopedia  of  Law,  tide  "  Dower."  Tables 
for  computation  of  dower  are  given  McKeon's  Dower  and  Life  tables, 
Giauque  and  McClure's  Dower  and  Curtesy  Tables  and  Sterne's  tables  for  com- 
putation for  the  present  value  of  dower. 

[278] 


( 


DOWER.  2/9 


Art.  I.     The  Right  of  Dower. 


Sections  of  thk  Code  —  Continued. 

SEC.  ART.  PAGE. 

1612.  Fees  and  expenses 6       323 

1613.  Final  judgment g       334 

1614.  Plaintiff    may  recover   sum   awarded;  court    may  modify  judg- 

ment   9  334 

1615.  Junior  incumbrancers;  not  affected  by  admeasurement g  334 

1616.  Appeal  not  to  stay  execution,  if  undertaking  is  given 4  311 

1617.  Plaintiff  may  consent  to  receive  a  gross  sum 8  331 

161S.   Defendant  may  consent  to  pay  it;  proceedings  thereupon 8  331 

1619.  Interlocutory  judgment  for  sale 8  331 

1620.  Id. ;  directing  a  part  to  be  laid  off 8  331 

1621.  Liens  to  be  ascertained 8  332 

1622.  Id. ;  payment  of;  or  sale  subject  to 8  332 

1623.  Report  of  sale 8  332 

1624.  Final  judgment  thereon 8  332 

1625.  Certain  provisions  of  article  second  made  applicable 4  312 

ARTICLE  I. 
The  Right  of  Dower  . 

Sub.  I.  Origin  and  nature  of  dower. 

2.  When  and   in  what  land  widow  entitled  to   dower.     Law.s  1896. 

chap.  547,  secs.  170,  183. 

3.  When   dower   not    allowed    in    lands    exchanged    or    mortgaged. 

Laws  1896,  chap.  547,  secs.  171,  172,  173,  174,  175. 

4.  Pecuniary   provision  in  lieu   of  dower  and  election.     Laws   1896' 

CHAP.  547,  secs.  177-181. 

5.  How  DOWER   IS    released  OR    BARRED.       SEC.   i6q4  OF   CODE.       LaWS    1896, 

CHAP.   547,   SECS.   186,   187. 

6.  How  DOWER  AFFECTED  BY  DIVORCE.       LaWS  1896,  CHAP.  547,  SECS.  I76,  182. 

7.  Right  of   widow  to  quarantine  and  crops.     Laws    1S96,   chap.   547, 

SECS.  184,  185. 

Sub.  I.   Origin  and  Nature  of  Dower. 

The  word  "  dower"  means,  in  its  general  acceptance,  a  cer- 
tain estate  of  a  wife  in  the  real  property  of  her  husband.  The 
origin  of  the  estate  is  obscure,  and  in  different  States  and  coun- 
tries its  history  has  been  varied. 

Dower  at  common  law  is  the  life  estate  of  a  wife  in  one-third  of 
all  the  legal  estates  of  inheritance  of  which  her  husband  is  seized 
at  any  time  during  coverture  of  a  sole,  beneficial,  and  immediate 
seizin,  and  which  any  issue  of  theirs  might  rightfully  inherit.  It 
has  three  stages,  namely:  (i)  Its  inchoate  stage,  extending  from 
the  time  of  the   marriage  or  the   acquisition   of  the   property  in 


28o 


DOWER. 


Art.  I.     The  Right  of  Dower. 


question  to  the  time  of  the  husband's  death ;  (2)  Its  consummate 
stage,  extending  from  the  death  of  the  husband ;  and  (3)  Its 
assigned  stage,  extending  from  the  time  it  is  set  off  to  the  widow. 
Am.  &  Eng.  Ency.  of  Law,  vol.  5,  p.  884. 

The  right  of  dower  in  the  wife  is  said  to  be  one  of  great  anti- 
quity, it  was  early  recognized  by  the  common  law,  and  finds  a 
place  in  the  earliest  statutes  of  this  State.  It  is  stated  in  Scribner 
on  Dower,  p.  58,  that  marriage  is  an  essential  prerequisite  to  the 
right  of  dower,  and  in  order  to  entitle  a  woman  to  this  provision 
she  must  answer  to  the  description  of  a  lawful  wife.  The  right  of 
dower  attaches  to  any  estate  of  which  the  husband  was  seized, 
either  in  deed  or  in  law,  at  some  time  during  coverture,  subject, 
of  course,  to  the  condition  that  the  wife  has  not  joined  in  alienat- 
ing it.  Any  effectual  alienation  by  the  husband  before  marriage 
prevents  the  right  of  dower  from  attaching. 

After  marriage  it  is  not  in  the  power  of  the  husband  to  defraud 
the  wife.  The  inchoate  right  of  dower  which  existed  during 
coverture  becomes  perfected  upon  the  death  of  the  husband,  and 
she  then  has  a  right  to  enter  upon  the  enjoyment  of  that  interest. 
Dower  is  said  to  be  the  adjunct  of  marriage  and  survivorship. 
ScJiiffcr  V.  Priidcn,  64  N.  Y.  47.  It  is  defined  in  Daiton  v. 
Hanry,  8  Barb.  618,  as  an  interest  in  lands  contingent  during  the 
life  of  the  husband  and  which  attaches  as  soon  as  there  is  a  con- 
currence of  marriage  and  seizin,  and  cannot  be  prejudiced  by  any 
subsequent  act  of  the  husband.  Scott  \.  Hozvard,  3  Barb.  319. 
Marriage,  seizin  and  the  husband's  death  are  necessary  to  estab- 
lish the  right  of  dower.      Wait  v.  Wait,  4  N.  Y.  95, 

A  widow  on  her  husband's  death  has  absolute  dower  in  the 
lands  of  which  he  died  seized,  and  this  right,  though  resting  in 
action,  is  liable  in  equity  for  indebtedness  and  is  assignable. 
Payne  V.  Bcckc}',  13  Week.  Dig.  441,  reversing  22  Hun,  28.  The 
inchoate  right  of  dower  is  no  part  of  the  married  woman's  sepa- 
rate estate.  Watson  v.  Church,  3  Hun,  80.  That  dower  attaches 
at  time  of  marriage  and  is  a  vested  right,  see  Lawrence  v.  Miller, 
2  N.  Y.  250.  It  is  a  positive  institution  of  law  incident  to  the 
marriage  relation.  Moore  v.  TJie  Mayor,  8  N.  Y.  iio.  The 
authorities  upon  the  subject  of  the  nature  and  characteristics  of 
dower  right  are  collated,  opinion  by  Ruger,  Ch.  J.,  all  concur- 
ring, in  Witthaus  v.  Schack,  105  N.  Y.  332,  where  it  is  held  that 
dower  is  not  an  estate  or  interest  in  land  but  a  contingent  claim 


DOWER.  281 


Art.  I.     The  Right  of  Dower. 


arising  not  out  of  contract  but  as  an  institution  of  law,  con- 
.stituting  a  chose  in  action,  incapable  of  transfer  by  grant  or  con- 
veyance, but  susceptible  during  its  inchoate  state  only  of  extin- 
guishment. 

A  wife's  inchoate  right  of  dower  is  not  derived  from  her  hus- 
band. It  attaches  from  the  moment  of  the  grant  to  her  husband, 
and  she  takes  constructively  as  purchaser  from  the  grantor. 
Kiirshcedt  v.  Union  Dime  Savmgs  Institution,  118  N.  Y.  358. 

All  that  is  necessary  under  the  statute  to  entitle  a  widow  to 
dower  is  that  the  husband  shall  have  been  seized  of  an  estate  of 
the  inheritance  in  the  land  during  coverture.  Possession  is  not 
necessary.     Mclntyrc  \.  Costcllo,  A^J  Hun,  289;  s.  c.  14  St.  Rep. 

369- 


But  the  right  of  dower  and  the  manner  of  enforcing  a  claim 
therefor  are  both  subject  to  the  power  of  the  Legislature,  and 
depend  on  the  statutes  in  force  at  time  of  the  husband's  death. 
Jourdan  w.  Haran,  56  Supr.  Ct.  185;  s.  c.  18  St.  Rep.  858,  3 
N.  Y,  Supp=  541. 

Whatever  cloubt  may  have  existed  at  common  law  as  to  the 
rieht  to  assign  dower,  it  has  been  settled  in  this  State  that  the 
widow's  dower  right,  although  not  admeasured  is  an  absolute 
right  which  is  assignable.  Hozvcll  v.  Newman,  59  Hun,  538,  37 
St.  Rep.  296;  Payn  v.  Becker',  87  N.  Y.  153;  Pope  v.  Mead,  99 
N.  Y.  20 [. 

In  Robinson  v.  Covers,  30  Abb.  N.  C.  241,  138  N.  Y.  425, 
reversing  67  Hun,  317,  it  was  held  that  while  the  widow's  estate 
of  dower  in  the  lands  of  her  husband  terminated  at  her  death  and 
that  in  an  incomplete  proceeding  for  admeasurement  there  will 
be  nothing  for  the  court  to  act  upon  after  the  death  of  the 
doweress,  that  proceedings  had  reached  such  a  stage  before  the 
plaintiff's  death  as  to  vest  in  her  a  right  to  the  money  representing 
the  value  of  her  estate  in  the  land  and  that  this  right  passed  to  her 
executor,  and  it  was  further  held  that  the  plaintiff's  right  to 
demand  and  receive  the  sum  fixed  was  established  when  the  court 
made  its  decision,  and  this  right  was  not  defeated  by  the  fact 
that  the  formal  order  was  not  entered  until  after  her  death,  that 
in  equity  this  might  be  regarded  as  done  at  the  time  the  decision 
was  made. 

Although  the  right  of  a  doweress  in  lands  before  assignment  is 
not  established,  it  is  a  charge  and   encumbrance  upon  them  and 


282 


DOWER. 


Art.  I.     The  Right  of  Dower. 


is  capable  of  being  enforced  and  of  producing  a  legal  estate.  It 
is  in  that  respect  similar  to  the  right  which  a  mortgagee  has  in 
the  lands  mortgaged.  The  interest  of  neither  constitutes  an 
estate  in  lands,  but  both  are  interests  which  may  be  transferred 
or  conveyed  by  any  instrument  evidencing  an  intent  to  so  trans- 
fer them  and  in  neither  case  can  the  lands  be  transferred  by  the 
legal  owners,  so  as  to  leave  them  in  the  hands  of  any  subsequent 
grantees,  free  from  the  respective  claims  of  the  doweress  or  the 
mortgagee.     Mjitual  Life  Ins.  Co.  v.  Shipmaii,  119  N.  Y.  324. 

The  inchoate  right  of  dower  of  the  wife  during  the  life  of  her 
husband  is  a  subsisting  interest  which  entitles  her  to  redeem  mort- 
gaged premises  from  a  foreclosure  in  which  she  has  not  been  served 
with  process.      Taggart  v.  Rogers,  49  Hun,  265. 

A  married  woman  may,  to  protect  her  inchoate  right  of  dower, 
maintain  an  action  to  cancel  of  record  a  deed  purporting  to  be 
executed  by  herself  and  her  husband,  on  the  ground  that  it  is  a 
forgery-  so  far  as  it  purports  to  be  executed  by  her,  and  is  not 
oblisred  to  wait  for  admeasurement  of  dower  after  his  death. 
Such  action  may  be  maintained  although  the  name  of  the  wife  in 
the  deed  is  not  exactly  that  of  the  plaintiff,  where  the  similarity 
is  so  great  as  to  deceive  persons  not  intimately  acquainted  with 
her.  Clifford  n.  Kampfe,  147  N.  Y.  383,  42  N.  E.  Rep.  1,70 
St.  Rep.  36,  afifirming  84  Hun,  393,  65  St.  Rep.  550,  32  N.  Y. 
Supp.  352.  But  it  is  said  that  a  widow's  claim  of  dower  is  a  mere 
right  of  action  which  cannot  be  conveyed  before  admeasurement, 
and  it  can  only  be  reached  by  a  creditor's  bill  or  in  supplementary 
proceedings  before  its  formal  assignment.  Williams  v.  Kierncy, 
6  St.  Rep.  560,  affirmed,  1 18  N.  Y.  679.  The  Supreme  Court  cites 
Ritchie  V.Putnam,  13  Wend.  524;  Siglar  v.  Van  Riper,  10  Wend. 
414;  Jackson  V.  Vandenheyden,  17  Johns.  167;  Tompkins  y.  Fonda, 
4  Paige  Ch.   448;  Payne  v.  Becker,  87  N.  Y.  155. 

Even  though  unadmeasured,  the  right  of  dower  of  a  judgment 
debtor  vests  in  a  receiver  appointed  in  supplementary  proceed- 
ings. Saylcs  V.  Nay  lor,  5  St.  Rep.  816.  This  case  also  cites  Payne 
V.  Becker,  87  N.  Y.  155,  together  with  Pope  v.  Mead,  99  N.  Y. 
201,  and  in  discussing  the  right  of  a  receiver  under  such  circum- 
stances, cites  Scott  V.  Elmore,  10  Hun,  68  ;  Moak  v.  Coats,  33  Barb. 
498;  Manning  v.  Evans,   19   Hun,  500. 

That  the  right  of  dower  until  assigned  is  a  mere  chose  in  action, 
not  subject  to  sale  on  execution,  is  held.     Laivrence  v.  Miller,  2 


DOWER.  28- 


Art.  I.     The  Right  of  Dower. 


N.  Y.  245  ;  Moore  v.  Mayor ^  8  N.  Y.  iio;  Aikinan  v.  Harscl,   98 
N.  Y.  186. 

A  widow's  dower  right,  although  not  admeasured,  is  an  abso- 
lute right  which  is  assignable,  and  where  she  assigns,  taking  back 
a  mortgage  on  the  land,  her  equities  are  the  same  as  if  she  had 
conveyed  the  land  and  taken  back  a  mortgage  for  the  purchase 
price.  Pope  v.  Mead^  99  N.  Y.  201  ;  same  principle,  Bostwick  v. 
Beach,  ICX)  N.  Y.  414;  see,  however,  Sayles  v.  Nay/or,  5  St.  Rep. 
816,  citing  2  N.  Y.  245,  8  N.  Y.  no,  98  N.  Y.  186,  to  the  point 
that  before  assignment,  a  widow's  dower  is  not  the  subject  of  sale 
under  execution. 

Sub.  2.  When  and  in  What  Lands  Widow   Entitled  to  Dower, 

Laws  1896,  Chap.  547,  §§  170,  183. 

§  170.  Dower. 

A  widow  shall  be  endowed  of  the  third  part  of  all  the  lands  whereof  her  hus- 
band was  seized  of  an  estate  of  inheritance,  at  any  time  during  the  marriage. 

§  183.  Effect  of  acts  of  husband. 

An  act,  deed,  or  conveyance,  executed  or  performed  by  the  husband  without 
the  assent  of  his  wife,  evidenced  by  her  acknowledgment  thereof,  in  the  manner 
required  by  law  to  pass  the  contingent  right  of  dower  of  a  married  woman,  or 
a  judgment  or  decree  confessed  by  or  recovered  against  him,  or  any  laches,  de- 
fault, covin,  or  crime  of  a  husband,  does  not  prejudice  the  right  of  his  wife  to 
her  dower  or  jointure,  or  preclude  her  from  the  recovery  thereof. 

The  statutes  relating  to  dower  were  repealed  by  chapter  547, 
Laws  of  1896,  and  art.  V  of  that  chapter  enacted  in  their  place. 
The  sections  are  given  under  the  subdivisions  which  follow.  As 
the  law  and  practice  on  the  subject  are  so  closely  associated  it  is 
impossible  to  treat  the  procedure  without  reference  to  the  right 
of  dower  as  given  by  statute. 

A  widow  is  not,  by  virtue  of  her  dower  right,  a  tenant  in  com- 
mon. Wood  V.  Chite,  i  Sandf.  Ch.  349.  She  has  no  estate  in 
the  lands  after  assignment  of  dower.  Green  v.  Putnam,  i  Barb. 
500;  Scott  V.  Howard,  3  Barb.  319;  AsJi  v.  Cook,  3  Abb.  389; 
Kyle  v.  Kyle,  3  Hun,  458.  To  entitle  the  widow  to  dower,  she 
must  show  a  seizin  of  the  husband  during  coverture.  Poor  v. 
Norton,  15  Barb.  485.  An  instantaneous  seizin,  of  which  the 
husband  is  immediately  divested,  is  not  sufficient.  Storto  v. 
Tefft,  15  Johns.  438;  CunningJiavi  v.  Knight,  i  Barb.  399.  Pos- 
session by  the  husband  is  prima  facie  evidence  of  seizin.  Sitzer 
v.   Waltermire,  5  Cow.  299;  s.  c.  7  Cow.  353. 


284 


DOWER. 


Art.  I.     The  Right  of  Dower. 


Where  a  husband  is  seized  of  a  vested  remainder,  expectant 
upon  an  estate  for  Hfe,  subject  to  be  defeated  by  his  own  death 
prior  to  that  of  the  tenant  for  life,  and  he  purchases  the  Hfe  estate, 
this  is  such  a  seizin  as  entitles  his  wife  to  dower,  subject  to  be  de- 
feated by  his  death  before  that  of  the  life  tenant.  House  v.  Jack- 
son, 50  N.  Y.  161  ;  Pozvcrs  v.  Jackson,  57  N.  Y.  654.  A  woman 
married  abroad,  even  before  the  naturalization  of  her  husband, 
becomes  entitled  to  dower  if  he  subsequently  becomes  naturalized 
here,  although  she  did  not  follow  him  to  this  country.  Burton  v. 
Burton,  i    Keyes,  359. 

The  marriage  within  the  State  of  a  woman  with  a  man  who  has 
been  divorced  for  his  own  adultery,  the  former  wife  of  the  man 
being  living  at  the  time  of  such  marriage,  is  void,  and  she  is  not 
entitled  to  dower  in  his  property.  Cropsy  v.  Ogdcn,  1 1  N.  Y. 
228.  The  husband  must  have  been  seized  of  an  estate  of  inherit- 
ance to  entitle  a  widow  to  dower ;  a  reversion  in  fee  or  a  vested 
remainder  is  not  suf^cient.  Durando  v.  Durando,  23  N.  Y.  331. 
The  joinder  of  a  wife  with  her  husband  in  a  conveyance  operates 
as  a  release  of  her  future  contingent  right  of  dower,  in  aid  of  the 
title  or  lien  so  created,  and  so  long  as  the  title  remains  outstand- 
ing, she  cannot  claim  dower ;  but  when  the  conveyance  is  defeated 
by  sale  under  a  prior  incumbrance,  the  wife  is  restored  to  the 
original  position,  and  may,  after  the  death  of  her  husband,  recover 
dower  in  the  lands  after  satisfaction  of  lien  created  by  her  convey- 
ance.    Hinclicliffc  \.  Shea,  103  N.  Y.   153. 

The  widow  is  not  entitled  to  dower  in  her  husband's  estate  for 
the  life  of  another;  Gillis  v.  Brozvn,  5  Cow.  588;  nor  in  a  vested 
remainder  in  fee  belonging  to  the  husband,  limited  on  a  precedent 
remainder;  Green  v.  Putnam,  i  Barb.  500 ;  or  in  property  devised 
to  another  during  her  widowhood  ;  Bccknian  v.  Hudson,  20  Wend. 
53;  nor  in  a  mere  trust  estate  conveyed  to  her  husband  for  a 
specific  purpose.  Cooper  v.  Whiting,  3  Hill,  95 ;  Gerviond  v. 
Jones,  2  Hill,  569;  see  Tcrrett  v.  Cromdie,  6  Lans.  82. 

Nor  in  lands  for  which  her  husband  holds  a  contract  of  sale  if 
he  alien  during  coverture.  Hicks  v.  Stebbins,  3  Lans.  39.  Where 
land  is  limited  over  to  another  by  way  of  executory  devise  in 
case  of  the  death  of  the  first  taker  without  lawful  issue,  the  widow 
of  the  latter  is  not  entitled  to  dower  therein.  Welter  v.  Welter, 
28  Barb.  588.  Until  it  has  been  determined  whether  a  parcel 
shall  be  set  off  to  a  widow  or  a  sale  had,  her  right  beyond  mesne 


DOWER.  285 


Art.  I.     The  Right  of  Dower. 


profits  remains  a  mere  naked  and  inchoate  life  estate  and  termi- 
nates on  her  death,  notwithstanding  prior  service  of  notice  by  her 
to  accept  a  gross  sum  in  lieu  of  dower.  McKcoi  v.  Fish,  y^  Hun, 
28,  afifirmed,  98  N.  Y.  645. 

A  former  wife  is  not  entitled  to  dower  in  land  acquired  by  the 
husband  after  divorce  on  the  ground  of  his  adultery.  Kadc  v. 
Laubcr,  48  How.  382.  Where  the  wife  joins  with  the  husband  in 
conveying  land  to  trustees  to  sell,  she  is  not  entitled  to  dower  in 
parcels  sold  or  contracted  to  be  sold  at  the  time  of  his  death. 
Hazvhy  v.  James,  5  Paige,  318,  453  ;  Hicks  \.  Stcbbiiis,  3  Lans.  39. 
When  lands  are  taken  for  public  use  and  the  value  of  the  entire 
fee  is  paid  him,  the  wife's  possibilty  of  dower  is  defeated.  Moore 
V.  The  Mayor,  8  N.  Y.  no;  Matter  of  Central  Park,  16  Abb.   56. 

The  rule  that  dower  upon  dower  cannot  be  allowed  does  not 
apply  where  dower  has  not  been  actually  assigned  to  the  prior 
doweress.  In  such  case  the  widow  of  the  subsequent  owner  is 
entitled  to  the  dower  in  the  whole  premises.  Ehvood  v.  Klock, 
13  Barb.  50.  Contra,  Matter  of  Cregier,  i  Barb.  Ch.  598.  For 
decisions  relating  to  dower  upon  dower,  see  Reynolds  v.  Reynolds, 
5  Paige,  161  ;  Saffordw.  Safford,  7  Paige,  259;  Dunhani  v.  Osborn, 
I  Paige,  634.  A  widow's  dower  in  an  equity  of  redemption  under 
a  mortgage  made  before  marriage  is  liable  to  be  defeated  by  en- 
forcement of  the  mortgage.  Van  Duyne  v.  Thayre,  14  Wend.  233, 
So  C.  19  Wend.  162.  Where  a  reservation  of  perpetual  rent  is 
made,  the  widow  has  dower  in  it  as  an  incorporeal  hereditament ; 
but,  where  the  rent  may  be  discharged  by  the  payment  of  a  gross 
sum,  right  of  dower  is  defeated.  Moriarta  v.  McRae,  10  St. 
Rep.  631. 

A  release  of  the  equity  of  redemption  is  equivalent  to  foreclosure 
and  defeats  dower.  Jackson  v.  Dewitt,  6  Cow.  316.  A  widow 
is  not  entitled  to  dower  in  land  conveyed  to  the  husband  during 
coverture  as  against  his  simultaneous  mortgage  for  the  purchase 
money,  whether  to  the  grantor  or  a  third  party.  Kittle  v.  Van 
Dyck,  I  Sandf.  Ch.  76.  It  is  said  in  Cunninghani  v.  Knight,  i  Barb. 
399,  but  questioned  in  Blydenhnrgh  v.  Northrop,  13  How.  289, 
that  where  one  receives  a  deed  and  gives  a  mortgage  for  the  pur- 
chase-money and  afterwards  marries,  his  wife  has  no  right  of  dower. 
A  wife  is  not  entitled  to  dower  in  a  surplus  arising  from  a  sale  on 
foreclosure  of  a  mortgage  executed  by  her  husband  and  herself  if 
the  husband  died  after  the  sale  was  confirmed.     Frost  v.  Peacock,  4 


286  DOWER. 


Art.  I.     The  Right  of  Dower. 


Edw.  678.  Where  specific  performance  was  decreed  against  the 
vendor's  widow,  who  was  the  sole  devisee,  Jicld,  that  she  was  not 
entitled  to  dower.     Myers  v.  De  Micr,  52  N.  Y.  647. 

It  has  been  said  that  a  court  of  law  will  not  set  aside  a  deed 
executed  by  the  husband  before  the  marriage  in  fraud  of  the  wife's 
right  of  dower.  Baker  v.  Chase,  6  Hill,  482.  But  the  contrary 
is  held.  YoHJigs  V.  Carter,  i  Abb.  N.  C.  135;  affirmed,  10  Hun, 
194;  Babcock  V.  Babcoek,  53  How.  97;  Szvain  v.  Ferine,  5  Johns. 
Ch.  482 ;  Ponieroy  v.  Ponieroy,  54  How.  228. 

There  may  be  dower  in  lands  held  at  any  time  during  coverture 
by  the  husband  and  others  as  tenants  in  common.  Smith  v.  Smith, 
6  Lans.  313.  Where  a  husband  during  coverture  had  a  legal 
estate  of  inheritance  in  a  wharf  or  pier,  his  widow  is  entitled  to 
dower  therein.  Beellow  v.  Stillwell,  g\  Hun,  384,  36  Supp.  129, 
71  St.  Rep.  II.  The  widow  of  a  deceased  partner  is  entitled  to 
dower  in  a  moiety  of  lands  held  by  two  in  common.  Hazcley  v. 
James,  5  Paige,  451.  An  ante-nuptial  agreement  by  a  woman 
that  she  will  not  claim  her  dower  in  the  event  of  her  intended 
marriage  is  contrary  to  public  policy,  and,  unless  founded  upon 
the  consideration  of  some  provision  for  her  in  lieu  of  dower,  will 
be  ineffectual  both  at  law  and  in  equity.  Curry  v.  Curry,  10 
Hun,  366.  The  widow  of  a  mortgagor  was  made  a  party  in  fore- 
closure, and  answered  and  submitted  to  the  decree  of  the  court. 
Held,  that  she  was  entitled  to  the  use  of  one-third  of  the  surplus 
money  after  deducting  the  mortgage  debt  as  dower.  Tabele  v. 
Tabcle,  i  Johns.  Ch.  45.  If  the  husband  purchase  the  share  of  a 
tenant  in  common,  pending  proceedings  for  a  partition  which 
result  in  a  sale,  his  widow  is  entitled  to  dower  in  his  proportion 
of  the  proceeds.      Church  v.  Church,  3  Sandf.  Ch.  434. 

W'here  two  tenants  in  common  having  made  a  parol  partition, 
one  of  them  having  sold  his  portion,  the  other  Joined  in  the  con- 
veyance to  the  purchaser,  this  is  not  sufficient  to  oust  the  widow 
of  the  former  of  her  dower  in  the  whole  of  the  land  so  conveyed. 
Dolf  V.  Bassett,  15  Johns.  21.  See,  however,  where  conveyance 
was  followed  by  possession  to  the  contrary.  Totten  v.  Stuyvesant, 
3  Edw.  500;  Jackson  v.  Edzvards,  7  Paige,  386.  A  widow  is  en- 
titled to  dower  in  lands  which  she  had  united  \\ith  lier  husband 
in  conveying  to  another,  on  the  deed  being  declared  fraudulent 
as  to  creditors.     Maloney  v.  Horan,  49  N.  Y.     11 1. 

Where  lands  are  sold  for  the  payment  of  debts,  one-third  of  the 


DOWER.  287 


Art.  I.     The  Right  of  Dower. 


gross  amount  is  to  be  invested  for  the  widow,  and  she  is  entitled 
to  one-third  of  the  interest  on  the  purchase-money  from  the  day 
of  sale.  Higbicx.  West  lake,  14  N.  Y.  281.  Where  the  husband 
aliens  in  his  lifetime,  the  wife  is  entitled  only  to  dower  according 
to  the  value  of  the  property  at  the  time  of  the  alienation.  Hale  v. 
Jatucs,  .6  Johns.  Ch.  258;  Walker  v.  Schuyler,  10  Wend.  480 ; 
HujupJirey  v.  PJiinney,  2  Johns.  484;  Dorchester  v.  Covefitry,  11 
Johns.  510;  Shazv  v.  White,  13  Johns.  179;  Parks  v.  Hardy,  4 
Bradf.   15  ;  Marble  v.  Leivis,  53  Barb.  432. 

Where  an  annuity  does  not  become  a  charge  on  the  land  by 
force  of  the  original  devise,  there  having  been  sufficient  personalty 
at  testator's  death  to  furnish  it,  the  right  of  dower  of  the  wife  of 
the  devisee  is  entitled  to  priority  over  the  right  of  the  annuitant 
and  cannot  be  affected  by  subsequent  arrangements  between  such 
annuitant  and  the  devisee.  Where  the  title  comes  to  the  hus- 
band subject  to  a  lien,  the  wife's  inchoate  right  of  dower  is  also 
subject  to  such  lien.  Where  a  will  creates  a  trust  to  secure  an 
annuity  during  the  minority  of  testator's  youngest  son  and  no 
longer,  and  provides  that  at  his  reaching  majority  a  fund  be  set 
apart  for  the  annuity  and  the  balance  divided  among  testator's 
children,  the  shares  of  the  latter  vest  when  the  youngest  son  at- 
tains majority  and  the  right  of  dower  of  the  wife  of  one  of  them 
becomes  consummate  upon  the  subsequent  death  of  her  husband 
during  the  life  of  the  annuitant.  Clark  v.  Clark,  147  N.  Y.  639 ; 
42  N.  E.  Rep.  275  ;  71  St.  Rep.  273  ;  affirming  84  Hun,  362  ;  32 
N.  Y.  Supp.  325  ;  65  St.  Rep.  483. 

Dower  in  a  defeasible  estate  is  lost  when  the  estate  is  defeated. 
Moriarta  v.  McRca,  45  Hun,  564;  s.  C.   10  St.  Rep.  631. 

But  an  infant  wife  does  not  lose  her  dower  by  joining  in  her 
husband's  deed.  Mclntyre  v.  Costcllo,  14  St.  Rep.  370,  47  Hun, 
289. 

Where  the  husband  has  not  an  estate  in  possession,  to  which 
the  right  of  dower  of  his  wife  will  attach  and  no  immediate  inter- 
est in  a  decedent's  estate,  if  he  agrees  not  to  contest  the  will  of 
the  decedent,  his  wife  will  not  acquire  dower  interest  in  the  premi- 
ses of  the  deceased.      Jones  v.  Duff,  47  Hun,   170. 

It  is  not  essential  that  a  widow's  dower  should  be  admeasured 
or  assigned  to  her,  in  order  to  entitle  her  to  be  allowed  for  it  on 
the  settlement  of  an  estate.  Matter  of  Lenahan,  4  N.  Y.  Supp. 
219;  S.  C.  21  Ab,  N.  C.  282. 


288 


DOWER. 


Art.  I.     The  Right  of  Dower. 


The  doctrine  that  when  a  husband's  deed  is  void  or  ceases  to 
■operate,  the  wife  may,  after  his  death,  recover  dower  as  if  she  had 
never  joined  in  the  conveyance,  is  appHed  in  Wilkinson  v.  Pad- 
dock, 57  Hun,  191  ;  s.  c.  32  St.  Rep.  535. 

The  widow  of  a  co-partner  is  only  entitled  to  dower  in  the  real 
property  of  co-partnership  of  which  her  husband  was  a  member, 
after  the  settlement  of  the  partnership  accounts.  Grecmvood  v. 
Marvin,  11  St.  Rep.  235,  1 1 1  N.  Y.  423,  citing  Sage  v.  Sherman,  2 
N.  Y.  432;  Winter  v.  Eckert,  17  Weekly  Digest,  166;  Dawson  v. 
Parsons,  10  Misc.  428,  6},  St.  Rep.  320,  31  Supp.  78,  holding 
Smith  V.  Jackson,  2  Edw.  Ch.  34,  to  be  overruled  by  later  au- 
thorities and  citing  Fairchild  \.  Faircliild,  64  N.  Y.  471  ;  Coliiimb 
V.  Read,  24  N.  Y.  505  ;  BucJian  v.  Sumner,  2  Barb.  Ch.  167;  ]Vi/- 
liams  V.  Walker,  2  Sandf.  Ch.  325;  Bnlkley  v.  Bnlklcv,  11  Barb. 
43;  Smith  v.  Danvers,  5  Sandf.  Ch.  669;  Chester  v,  Dickinson,  52 
Barb.  349;  Everett  w  Schepmoes,  6  Hun,  479;  Garrett  v.  Scheffer, 
47  N.  Y.  656;  Hiscock  v.  Phelps,  49  N.  Y.   103. 

Where  a  widow  assigned  her  dower  and  died  without  taking  any 
proceedings  to  recover  it,  an  action  is  not  maintainable  either  to 
enforce  a  lien  therefor  or  to  admeasure  the  same  or  to  recover  a 
sum  in  gross  in  lieu  therefor.     Hozvellv.  Newman,  ^y  St.  Rep.  296. 

The  position  of  a  wife  in  respect  to  her  husband's  property  is  limi- 
ted by  the  Revised  Statutes,  and  save  as  brought  within  those 
limitations,  she  is  without  the  right  to  assert  any  claim  to  it.  To 
entitle  the  wife  to  dower,  the  husband  must  be  seized  either  in 
fact  or  in  law  of  a  present  freehold  in  the  premises,  as  well  as  an 
estate  of  inheritance.  Phelps  v.  Phelps,  143  N.  Y.  197,  75  Hun, 
577,  59  St.  Rep.  608,  27  Supp.  620. 

In  proceedings  for  the  condemnation  of  real  estate  under  the 
right  of  eminent  domain,  the  inchoate  right  of  dower  of  a  wife 
is  to  be  recognized  and  protected  in  the  proceedings  as  against  her 
husband.  Matter  of  Trustees  of  Nezv  York  and  Brooklyn  Bridge, 
75  Hun,  558,  59  St.  Rep.  613,  2-/  Supp.  597. 

An  action  may  be  maintained  by  a  wife  during  the  lifetijTie  of 
her  husband,  to  set  aside,  so  far  as  she  is  concerned,  a  deed  exe- 
cuted by  her  husband  and  the  person  purporting  to  be  his  wife, 
of  premises  of  which  the  husband  was  seized  during  the  marriage. 
Cliffords.  Kampfe,  147  N.  Y.  383,  afifirming  84  Hun,  393,  65  St. 
Rep.  550,  32  Supp.  332. 

Dower  is  held  to  be   attached   to  testator's  interest   in   a  lease 


DOWER,  289 


Art.  I.     The  Right  of  Dower. 


made  by  Seneca  Indians,  authorized  by  act  of  Congress,  and  to 
his  interest  in  lands  owed  by  him  with  others  in  the  name  of  one 
of  whom  title  was  taken.     Matter  of  McKay,  5  Misc.  123. 

The  right  of  dower  is  merely  an  incident  to  the  husband's  title, 
and  such  right  falls  with  the  estate  of  the  husband.  Green  v.  Rey- 
nolds, 54  St.  Rep.  846. 

Sub.  3.   Dower  not   Allowed  in    Lands   Exchanged  or  Mort- 
gaged FOR  Purchase-money.     Laws  1896,  Chap.  547,  §§  171-175. 

§  171.  Dower  in  lands  exchanged. 

If  a  husband  seized  of  an  estate  of  inheritance  in  lands,  exchanges  them  for 
other  lands,  his  widow  shall  not  have  dower  of  both,  but  she  must  make  her 
election,  to  be  endowed  of  the  lands  given,  or  of  those  taken  in  exchange;  and 
if  her  election  be  not  evinced  by  the  commencement  of  an  action  to  recover  her 
dower  of  the  lands  given  in  exchange,  within  one  year  after  the  death  of  her 
husband,  she  is  deemed  to  have  elected  to  take  her  dower  of  the  lands  received 
in  exchange. 

§  172.   Dow^er  in  lands  mortgaged  before  marriage. 

Where  a  person  seized  of  an  estate  of  inheritance  inlands,  executes  a  mortgage 
thereof,  before  marriage,  his  widow  is,  nevertheless,  entitled  to  dower  of  the 
lands  mortgaged,  as  against  every  person  except  the  mortgagee  and  those  claim- 
ing under  him. 

§  173.  Dower  in  lands  mortgaged  for  purchase-money. 

Where  a  husband  purchases  lands  during  the  marriage,  and  at  the  same  time 
mortgages  his  estate  in  those  lands  to  secure  the  payment  of  the  purchase-money, 
his  widow  is  not  entitled  to  dower  of  those  lands,  as  against  the  mortgagee  or 
those  claiming  under  him,  although  she  did  not  unite  in  the  mortgage.  She  is 
entitled  to  her  dower  as  against  every  other  person. 

§  174.  Surplus  proceeds  of  sale  under  purchase-money  mortgages. 

Where,  in  a  case  specified  in  the  last  section,  the  mortgagee,  or  a  person  claim- 
ing under  him,  causes  the  land  mortgaged  to  be  sold,  after  the  death  of  the 
husband,  either  under  a  power  of  sale  contained  in  the  mortgage,  or  by  virtue 
of  a  judgment  in  an  action  to  foreclose  the  mortgage,  and  any  surplus  remains, 
after  payment  of  the  money  due  on  the  mortgage  and  the  costs  and  charges  of 
the  sale,  the  widow  is  nevertheless  entitled  to  the  interest  or  income  of  one-third 
part  of  the  surplus  for  her  life,  as  her  dower. 

§  175.   Widow  of  mortgagee  not  endowed. 

A  widow  shall  not  be  endowed  of  the  lands  conveyed  to  her  husband  by  way 
of  mortgage,  unless  he  acquires  an  absolute  estate  therein,  during  the  marriage. 

Where  an  infant   unites  with   her  husband   in   conveying  land 
subject    to    a    purchase-money    mortgage,    which    mortgage    the 
grantee  purchases  and   takes  an  assignment   of,  the   mortgage  is 
[Special  Actions  —  19.] 


290  DOWER. 


Art.  I.      The  Right  of  Dower. 


not  merged  in  the  interest  of  the  grantee,  and  the  wife  is  not  en- 
titled to  dower  to  the  extent  of  the  mortgage.  Dc  Lisle  v.  Herbs, 
25  Hun,  485.  The  widow  does  not  lose  her  dower  in  surplus  after 
foreclosure,  by  failure  to  assert  her  claim,  where  the  person  to 
whom  such  surplus  has  been  paid  has  not  been  induced  to  take 
any  action  or  part  with  anything,  and  has  sustained  no  injury  by 
the  widow's  neglect.  MattJiezvs  v.  Dnryea,  45  Barb.  6g,  affirmed, 
4  Keyes,  425.  A  widow  may  be  endowed  out  of  an  equity  of 
redemption,  which  was  vested  in  her  husband  at  the  time  of  her 
marriage.  Co/es  v.  Coles,  15  Johns.  319;  Denton  w.  Nanny,  8  Barb. 
618;  Titns  V.  Neilson,  5  Johns.  Ch.  452;  Van  Duync  v.  Thayre,  14 
Wend.  233;  S.  C.  19  Wend.  162;  Bell  v.  Mayor,  10  Paige,  49. 
The  widow  is  entitled  to  dower  in  lands  of  which  her  husband 
died  seized,  though  at  his  decease  there  was  an  outstanding  mort- 
gage for  the  whole  of  the  purchase-money,  which  was  subse- 
quently paid  off  by  a  tenant  holding  under  a  release  from  her  hus- 
band's heir-at-law.  Hiteheock  v.  Harrington,  6  Johns.  290.  See 
Collins  V,  Torry,  7  Johns.  278;  Coales  v.  Checver,  i  Cow.  460 ; 
Bunyan  v.  Stezvart,  12  Barb.  547;  Wheeler  v.  Morris,  2  Bosw.  524. 
Where  a  husband  releases  his  equity. of  redemption  in  mortgaged 
premises,  the  wife  is  entitled  to  dower  in  the  land,  after  deducting 
the  mortgage.  Swaine  v.  Perrine,  5  Johns.  Ch.  482;  Hale  v. 
James,  6  Johns.  Ch.  258.     The  widow  is  entitled  to  dower  in  in- 

« 

cumbered  property  according  to  its  value  at  the  time  of  her  hus- 
band's death.     Everston  v.  Tappen,  5  Johns.  Ch.  497. 

Where  the  deed  and  mortgage  are  simultaneously  made  for 
purchase-money,  the  widow  only  takes  the  dower  in  the  equity. 
Stozv  V.  Tift,  15  Johns.  458;  Jaekson  \\  Dezvitt,  6  Cow.  316; 
Mills  V.  Van  Voorhis,  20  N.  Y.  412  ;  White  v.  Button,  37  Hun,  556. 

Under  the  Revised  Statutes,  the  widow  is  held  to  be  entitled 
to  equitable  dower  in  the  descendible  equitable  interests  of  the 
husband,  which  belonged  to  him  at  the  time  of  his  death,  as  land 
which  he  had  paid  for  but  of  which  he  had  received  no  conveyance 
or  of  land  which  he  had  paid  for  and  the  deed  had  been  taken  by 
another.  Haivleyv.  James,  5  Paige,  318,  453.  The  plaintiff,  to 
maintain  an  action  for  dower,  need  not  show  that  the  husband 
went  into  actual  possession.  Where  no  adverse  possession  is 
shown,  a  title  vested  in  him  will  constitute  such  seizin  as  the  law 
requires.  Mclntyrc  v.  Costello,  47  Hun,  288.  A  widow,  who  was 
also  executrix,  was  empowered  by  the  will  to  sell  the  land,  but  she 


DOWER.  291 


Art.   1.      The  Right  of  Dower. 


suffered  it  to  be  sold  under  a  mortgage,  and  became  the  purchaser 
in  her  own  right  and  sold  it.  Held,  that,  though  liable  to  account 
as  trustee  for  the  proceeds,  she  was  entitled  to  her  dower.  Evcrt- 
son  V,  Tappcn,  5  Johns.  Ch.  497.  The  statute  provides  that  the 
wife  is  not  entitled  to  dower  in  lands  mortgaged,  when  purchased 
for  the  purchase-money,  as  against  the  mortgagee,  and  that  claim- 
ing under  him  does  not  affect  her  right  of  dower  in  the  equity  of  re- 
demption. Blydcnburgh  v.  Nortlirop,  13  How.  289;  Mills  y.  Win 
VoorJiccs,  20  N.  Y.  412.  The  wife  joining  with  the  husband  in  a 
mortgage  only  operates  to  extinguish  her  dower  as  against  the 
mortgage;  if  she  survives  her  husband  it  does  not  affect  her  con- 
tingent right  of  dower  in  the  equity  of  redemption.  Hawlcy  v. 
Bradford,  9  Paige,  200. 

One  being  seized  of  land  subject  to  a  mortgage,  which  had  not 
been  executed  by  the  wife,  conveyed  to  another,  his  wife  joining 
with  him  ;  the  grantee  then  reconveyed  to  the  grantor.  Held,  that 
the  widow's  dower  was  limited  to  the  equity.  Hooglaiid  v.  Watt, 
2  Sandf.  Ch.  148.  A  wife's  inchoate  right  of  dower  is  superior  to 
the  equity  of  one  who  has  loaned  money  upon  mortgage  to  the 
hu.sband,  deceased,  by  a  false  representation  that  he  was  unmar- 
ried, and  this,  although  the  money  was  used  to  pay  off  a  prior 
mortgage.  West/all  v.  JVinse,  7  Abb.  N.  C.  236.  A  wife  takes 
dower  in  the  mortgaged  premises  subordinate  to  the  power  of 
sale  in,  as  well  as  the  lien  of,  a  purchase-money  mortgage  in  which 
she  did  not  join.      Brackctt  v,  Bauin,  50  N.  Y.  8. 

A  deed  by  the  wife  joining  with  the  husband  operates  as  a 
release  or  satisfaction  and  removes  an  incumbrance  instead  of 
transferring  an  interest.  See  Jones  v.  Fleming,  104  N.  Y.  418; 
Hinchcliffe  w.  Shea,  103  N.  Y.  153;  Witthansv.  Sehcnck,  105  N. 
Y.  332,  was  followed  in  Aseh  v.  Aseh,  47  Hun,  286. 

The  wife  of  a  mortgagor  is  dowable  in  the  surplus  moneys  even 
though  she  joined  in  the  mortgage.  N.  V.  Life  Ins.  Co.  v.  Mayer, 
12  St.  Rep.   119,  af^rmed.   108  N.  Y.  655. 

A  mortgage  executed  for  the  purchase  money  of  lands  pursu- 
ant to  an  oral  agreement  by  which  it  was  to  have  been  taken  at 
the  time  of  the  conveyance,  though  in  fact  executed  subse- 
quently, is  superior  to  the  dower  interest  of  the  wife  of  the  mort- 
gagor, who  married  him  in  the  intervening  period.  UlricJi  v. 
UlricJi,  17  St.  Rep.  414. 

But  in   order  to  cut  off  the  dower  right  of  the  wife  of  a  mort- 


292 


DOWER. 


Art.  I.     The  Right  of  Dower. 


gagor  under  a  purchase  money  mortgage,  she  must  be  made  a 
party  to  the  action.  Sheldon  v.  Hoffnagle,  51  Hun,  478;  S.  C.  4 
N.  Y.  Supp.  287,  21  St.  Rep.  637. 


Sub.  4.   Pecuniary  Provision  in  Lieu  of  Dower  and  Election. 
Laws  1896,  Chap.  547,  §§  177-181. 

§177.   When  dower  barred  by  jointure. 

Where  an  estate  in  real  property  is  conveyed  to  a  person  and  his  intended 
wife,  or  to  the  intended  wife  alone,  or  to  a  person  in  trust  for  them  or  for  the 
intended  wife  alone,  for  the  purpose  of  creating  a  jointure  for  her,  and  with  her 
assent,  the  jointure  bars  her  right  or  claim  of  dower  in  all  the  lands  of  the  hus- 
band. The  assent  of  the  wife  to  such  a  jointure  is  evidenced  if  she  be  of  full 
age,  by  her  becoming  a  party  to  the  conveyance  by  which  it  is  settled;  if  she 
be  a  minor,  by  her  joining  with  her  father  or  guardian  in  that  conveyance. 

§  178.  When  dower  barred  by  pecuniary  pro  visions. 

Any  pecuniary  provision,  made  for  the  benefit  of  an  intended  wife  and  in  lieu 
of  dower,  if  assented  to  by  her  as  prescribed  in  the  last  section,  bars  her  right 
or  claim  of  dower  in  all  the  lands  of  her  husband. 

§  179.  When  widow  to  elect  betw^een  jointure  and  dower. 

If,  before  the  marriage,  but  without  her  assent,  or  if  after  the  marriage,  real 
property  is  given  or  assured  for  the  jointure  of  a  wife,  or  a  pecuniary  provision 
is  made  for  her,  in  lieu  of  dower,  she  must  make  her  election  whether  she  will 
take  the  jointure  or  pecuniary  provision,  or  be  endowed  of  the  lands  of  her 
husband;  but  she  is  not  entitled   to  both. 

§  180.  Election  between  devise  and  dower. 

If  real  property  is  devised  to  a  woman,  or  a  pecuniary  or  other  provision  is 
made  for  her  by  will  in  lieu  of  her  dower,  she  must  make  her  election  whether 
she  will  take  the  property  so  devised  or  the  provision  so  made,  or  be  endowed 
of  the  lands  of  her  husband,  but  she  is  not  entitled  to  both. 

§  181.  When  deemed  to  have  elected. 

Where  a  woman  is  entitled  to  an  election,  as  prescribed  in  either  of  the  last 
two  sections,  she  is  deemed  to  have  elected  to  take  the  jointure,  devise  or 
pecuniary  provision,  unless  within  one  year  after  the  death  of  her  husband 
she  enters  upon  the  lands  assigned  to  her  for  her  dower,  or  commences  an 
action  for  her  dower.  But,  during  such  period  of  one  year  after  the  death  of 
her  said  husband,  her  time  to  make  such  election  may  be  enlarged  by  the  order 
of  any  court  competent  to  pass  on  the  accounts  of  executors,  administrators  or 
testamentary  trustees,  or  to  admeasure  dower,  on  an  affidavit  showing  the 
pendency  of  a  proceeding  to  contest  the  probate  of  the  will  containing  such 
jointure,  devise  or  pecuniary  provision,  or  of  an  action  to  construe  or  set  aside 
such  will,  or  that  the  amount  of  claims  against  the  estate  of  the  testator  cannot 
be  ascertained  within  the  period  so  limited,  or  other  reasonable  cause,  and 
on  notice  given  to  such  persons  and  in  such  manner  as  such  court  may  direct. 
Such  order  shall  be  indexed  and  recorded  in  the  same  manner  as  a  notice  of 
pendency  of  action  in  the  office  of  the  clerk  of  each  county  wherein  the  real 
property  or  a  portion  thereof  affected  thereby  is  situated. 


DOWER.  293 


Art.  I.     The  Right  of  Dower. 


An  order  allowing  an  extension  of  time  within  which  a  widow 
shall  elect  between  the  provision  in  the  will  and  dower,  should 
not  be  granted,  unless  reasonable  cause  therefor  be  shown. 
Bradlmrst  v.  Field,  32  St.  Rep.  430.  The  amendment  en- 
larging time  was  first  made  very  soon  after  the  decision  by  the 
Court  of  Appeals  of  Akin  v.  Kellogg,  119  N.  Y.  441,  which 
held  that  the  provisions  of  this  section  requiring  a  widow  to 
elect  within  one  year  between  a  provision  under  the  will 
and  the  right  to  have  her  dower  admeasured,  and  declaring 
that  she  shall  be  deemed  to  have  elected  to  take  the  testamentary 
provision  unless  within  that  time  she  entered  upon  the  lands  to  be 
assigned  to  her  for  dower,  or  commenced  proceedings  for  the  as- 
signment thereof,  had  the  force  of  a  statute  of  limitations,  and 
she  was  at  once,  on  the  death  of  the  testator,  charged  with  the 
duty  of  informing  herself  so  as  to  make  her  election.  Afifirming 
48  Hun,  459.  The  same  case  on  a  former  appeal  is  reported,  39 
Hun,  252,  reversing  16  Abb.  N.  C.  265. 

The  claim  of  dower  is  to  be  favored,  and  the  presumption  is 
that  a  provision  in  the  will  not  expressed  to  be  in  lieu  of  dower 
was  intended  as  a  bounty.  Leonard  v.  Steele,  4  Barb.  20.  A 
legacy  to  a  wife  not  expressly  declared  to  be  in  lieu  of  dower 
will  not  be  so  intended,  unless  such  intent  can  be  deduced  by 
clear  and  manifest  implication  from  the  provisions  of  the  will. 
The  claim  of  dower  must  be  inconsistent  with  the  will  and  repug- 
nant to  its  dispositions,  and  such,  as  if  admitted,  would  disturb 
the  will.  Adsit  v.  Adsit,  2  Johns.  Ch.  448.  A  devise  of  a  testa- 
tor's whole  estate  to  his  widow  for  life,  with  remainder  over,  is 
not  a  provision  in  lieu  of  dower,  unless  such  intention  can  be 
implied  from  other  terms  of  the  will,  and  the  widow  may  take 
one-third  of  the  estate  as  doweress,  and  the  residue  as  devisee. 
Lewis  v.  Smith,  9  N.  Y.  502.  In  order  to  render  a  claim  for 
dower  barred  by  acceptance  of  a  provision  under  a  will,  it  must 
be  the  manifest  intention  of  the  testator  that  the  provision  should 
be  received  in  lieu.  Jackson  v.  Churchill,  7  Cow.  287.  To  bar 
the  widow  of  dower  by  implication,  where  the  testator  has  not  in 
terms  declared  his  intention  on  the  subject  in  his  will,  the  provi- 
sions of  the  will,  or  some  of  them,  must  be  absolutely  inconsist- 
ent with  her  claim  of  dower.      San  ford  v.  Jackson,  10  Paige,  266. 

A  testamentary  provision  of  the  husband  for  the  wife  will,  if 
accepted  by  her,  be  a  legal  as  well  as  an  equitable  bar  of  dower  in 


294  DOWER. 


Art.  I.     The  Right  of  Dower. 


all  cases  where  it  appears  expressly,  or  by  clear  implication,  to 
have  been  given  in  lieu  of  that  right,  but  not  otherwise.  Van 
Or  den  v.  Van  Orden,  lo  Johns.  30;  Kennedy  v.  Mills,  13  Wend. 
553;  Bull  V.  Church,  5  Hill,  206;  Wood  v.  Wood,  5  Paige,  601 ; 
Fuller  V.  Yates,  8  Paige,  329;  Smith  v.  Kniskern,  4  Johns.  Ch.  9; 
Vernon  v,  Vernon,  7  Lans.  492 ;  Rathbone  v,  Dyehnan,  3  Paige, 
9;  Havens  V.  Havens,  i  Sandf.  Ch.  324;  Mills  v.  Mills,  28  Barb. 
454;  Steivart  v.  Mc  Mart  in,  5  Barb.  438;  Irving  v.  Dekay,  9 
Paige,  521. 

A  competent  certain  provision  .settled  upon  an  infant,  in  lieu 
of  dower,  is  an  equitable  bar  to  dower,  but  the  provision  must  be 
as  beneficial  to  her,  and  as  certain,  as  that  required  to  make  a 
legal  jointure  a  bar  under  the  statute.  McCartce  v.  Teller,  2 
Paige,  511  ;  s.  C.  8  Wend.  267;  .see  Hawley  v.  James,  5  Paige, 
318;  s.  c.  16  Wend.  61.  A  provision  in  lieu  of  dower,  if  accepted, 
bars  the  wife's  dower  in  lands  the  testator  had  conveyed  before  the 
date  of  the  will.  Steele  v.  Fiseher,  i  Edw.  435;  Palmer  v,  Voor- 
liis,  35  Barb.  479. 

Where  a  husband  and  wife  lived  apart,  and  the  husband  had 
covenanted  to  allow  an  annual  sum  for  the  separate  mainten- 
ance of  the  wife,  and  made  a  provision  for  her  in  lieu  of  dower, 
held,  she  was  entitled  to  both.  Carson  v.  Murray,  3  Paige,  483. 
The  widow's  acceptance  of  a  testamentary  disposition,  in  lieu  of 
dower,  bars  her  right  of  dower,  and  it  is  no  answer  to  say  that 
she  has  not  received  all  that  was  intended  for  her.  Kennedy 
v.  Mills,  13  Wend.  553;  Van  Orden  v.  Van  Orden,  10  Johns.  30. 
But  if  part  of  the  provision  made  by  the  testator  is  declared  void, 
the  widow  is  not  bound,  by  a  previous  election,  to  receive  such 
possession  except  as  against  bona  fide  purchasers  or  incumbrancers. 
Honev.  Van  Sehaiek,  7  Paige,  221,  affirmed,  20  Wend,  564. 

The  widow's  relinquishment  of  dower  forms  a  valuable  consider- 
ation for  the  testamentary  gifts,  and  they  must  be  paid  in  prefer- 
ence to  other  legacies  and  without  abatement.  '  Isenhart  v.  Brown, 
I  Edw.  411.  A  husband  cannot  affect  his  wife's  right  of  dower 
by  a  power  of  sale  in  the  will.  Leiuis  v.  SmitJi,  9  N.  Y.  502. 
Where  a  testamentary  provision,  in  favor  of  a  widow,  is  of  shorter 
duration  than  the  estate  in  dower,  and  is  charged  with  a  burden, 
her  acceptance  of  it  is  not  a  waiver  of  her  right  of  dower.  Lasher 
V.  Lasher,  13  Barb.  106.  An  acceptance  of  an  annuity  in  lieu  of 
dower  and  payable  out  of  the  rents  of  the  real  estate  does  not 


DOWER.  295 


Art.  I.     The  Right  of  Dower. 


affect  the  widow'.s  right  to  personalty.  Edsall  v.  VVatcrbiiry,  2 
Redf.  48;  Hatch  v.  Basset t,  52  N.  Y.  359.  See  Sink  v.  Sink,  53 
How.  400.  Where  a  legacy  is  given  in  lieu  of  dower  it  does  not 
vest  absolutely  in  the  widow,  and  a  bequest  over,  in  case  of  remar- 
riage, is  good.  Smith  v.  Van  Nostrand,  64  N.  Y.  278,  reversing 
3  Hun,  450.  The  acceptance  of  a  provision  in  lieu  of  dower  does 
not  bar  the  widow's  right  to  share  in  certain  lapsed  legacies. 
Billiard  v.  Benson^  i   Dem.  486. 

If  a  widow  enters  into  possession  of  real  estate  devised  to  her 
in  lieu  of  dower,  and  institutes  no  proceeding  for  dower  within  a 
year  thereafter,  it  is  deemed  an  acceptance  of  the  testamentary 
provision.  Groiit  v.  Cooper,  9  Hun,  326.  If  she  enters  proceed- 
ings for  dower,  as  to  one  parcel,  within  the  year,  it  is  sufficient. 
Hazvley  v.  James,  5  Paige,  318,  reversed  on  other  grounds,  16 
Wend.  61.  But  commencing  of  proceedings  for  the  admeasure- 
ment of  dower  is  said,  in  Walton' s  Estate^  i  Tuck.  10,  not  to  be 
a  sufficient  election.  A  suit  brought  by  a  widow  to  set  aside  an 
instrument  by  which  she  agreed  to  accept  certain  provisions  of  the 
will  in  lieu  of  dower  is  not  a  proceeding  for  the  recovery  of  dower 
within  a  year,  under  the  statute —  i  R.  S.  742,  §  14  —  compell- 
-ing  her  to  take  such  proceeding  within  a  year.  CJiamberlain  v. 
Chamberlain,  43  N.  Y.  424.  The  widow  must  make  her  election 
within  one  year  after  her  husband's  decease,  without  notice  from 
her  husband's  devisees  as  to  the  provisions  of  the  will.  Palmer 
V.  Voorhis,  35  Barb.  479.  In  order  to  put  the  widow  to  her  elec- 
tion, where  the  husband  has  effected  an  exchange  of  lands  during 
his  lifetime,  there  must  be  a  mutual  grant  of  equal  parcels  of 
land,  the  one  in  consideration  of  the  other.  Wileox  v.  Randall, 
7  Barb.  633.  See  Riinyan  v.  Ste-zi-art,  12  Barb.  537;  Smith  v. 
Gardner,  42  Barb.  536. 

Where  the  provisions  of  the  will  cannot  be  carried  out  consist- 
ently with  the  widow's  claim  of  dower,  she  is  put  to  her  election. 
Young  V.  Boyd,  64  How.  213;  Sullivan  v.  Mara^  43  Barb.  523; 
Wet  more  v.  Peek,  66  How.  54.  See  Ex  parte  Frazier,  92  N.  Y. 
239.  In  cases  where  the  widow  is  bound  to  elect  between  dower 
and  the  benefits  given  her  by  the  will,  she  is  entitled  to  have  the 
respective  values  and  amounts  of  her  two  interests  ascertained 
before  she  elects  between  them.  Scribner  on  Dower,  vol.  2,  p. 
468  ;  Hindley  v.  Hindley,  29  Hun,  318.  If  a  trust  for  the  benefit  of 
the  widow  vests  the  entire  legal  estate  in  the  trustees,  it  is  inconsist- 


296  DOWER. 


Art.  I.     The  Right  of  Dower. 


ent  with  the  right  of  dower,  and  the  widow  is  put  to  an  election. 
Savage  v.  Burnham,  17  N.  Y.  561  ;  Tobias  v.  Ketclnun,  32  N.  Y. 
319.     Where  the  will  authorizes  the  trustees  to  sell  the  real  estate 
not  devised  to  the  wife,  this  is  inconsistent  with  dower.      Vernon 
V.  Vernon,  53  N.  Y.  351.     A  gift  in  lieu  of  dower  and  its  acceptance 
is  in   effect  a  contract.      Hathaway  v.  Hathaway,  37   Hun,  265. 
Where  the  scheme  of  the  will  would   be   defeated  by  allowing 
dower  to  the  widow,  she  is  put  to  her  election.      Dodge  v.  Dodge, 
10  Abb.  401.     There  being  no   provision   in  lieu   of  dower  in  a 
will,  although  the  testator  intended  to  have  the  realty  converted 
into  personalty,  yet  he  could  not  by  this  means  cut  off  his  widow's 
right  of  dower  any  more  than  he  could  by  sale  in  his  lifetime. 
Parker  v.  Linden,  9  St.    Rep.    305.      A  devise  to  the  testator's 
widow  of  the  uninterrupted  use  and  occupation  of  real  and  per- 
sonal property  of  the  testator  till  the  youngest   child  arrives  at 
the  age  of  twenty-one  does  not   put   the   widow  to  her  election. 
Bond  V.  McNiff,  9  J.  &  S.  43.     Where  a  husband  loans  money  and 
takes  a  note  therefor,  payable  to   the  order  of  himself  and  wife, 
and  thereafter  makes  a  will  containing  a  devise  expressly  in  lieu  of 
dower,  and  of  all  claims  upon  his  estate,  if  the  note  remains  un- 
paid at  the  time  of  his  decease,  the  widow  is  entitled  thereto  in 
addition  to  the  testamentary  provision.      She  is  not  put  to  her 
election.      Sanfordv.  Sanford,  58  N.  Y.  69.     To  put  a  widow  to 
an  election  between    her  dower    and  a    provision  by  will  there 
must  appear  an   intent  to  exclude  the   right  of  dower  either  by 
express  words  or  by  manifest   implication.     Leonard  v.  Steele,  4 
Barb.  20;  Lasher  v.  Lasher,  13  Barb.   106. 

Where  a  will,  after  directing  payment  of  debts,  funeral  expenses 
and  so  forth,  gave  to  the  wife  during  her  life  the  "  rents,  income, 
interest,  use  and  occupancy  "  of  all  his  estate,  real  and  personal, 
upon  condition  that  she  keep  the  buildings  and  personal  property 
insured,  pay  all  taxes  and  assessments,  and  keep  the  estate  in  good 
repair,  held,  the  provision  was  inconsistent  with  a  dower  right  and 
so  must  be  construed  as  in  lieu  of  dower,  and  the  widow  having 
accepted  the  provision  so  made,  that  she  could  not  thereafter  claim 
dower.  Matter  of  Zahrt,  94  N.  Y.  605.  Dower  is  never  excluded 
by  a  provision  for  the  wife  except  by  express  words  or  necessary  im- 
plication. Where  there  are  no  express  words  there  must  be  on 
the  face  of  the  will  a  demonstration  of  the  intent  of  the  testator 
that  the  widow  shall   not  take   both   dower  and    the  provision. 


DOWER.  297 


Art.  I.      The  Right  of  Dower. 


Such  demonstration  is  furnished  only  where  there  is  a  clear 
incompatibility  arising  on  the  face  of  the  will  between  a  claim  of 
dower,  and  a  claim  to  the  benefit  of  the  provision.  The  inten- 
tion to  put  the  widow  to  an  election  may  not  be  inferred  from 
the  extent  of  the  provision,  or  because  she  is  a  devisee  for  life  or 
in  fee,  or  because  it  might  seem  to  the  court  unjust,  as  a  family 
arrangement,  to  permit  her  to  claim  both,  or  because  it  might  be 
inferred  that,  had  the  attention  of  the  testator  been  called  to  it, 
he  would  have  expressly  excluded  dower.  Konvalinka  v.  Schlcgcl, 
104  N.  Y.  126;  distinguishing  Savage  v.  Biirnham^  17  N,  Y.  561, 
and  Tobias  v.  Kctchuni,  32  N.  Y.  319.  But  where  there  is  a 
manifest  incompatibility  between  the  bequest  to  the  widow  and 
dower,  even  though  there  is  no  express  provision  in  lieu  of  dower, 
the  widow  cannot  take  both  and  is  put  to  her  election.  Asche  v. 
Asche,  113  N.  Y.  235,  citing  Vcriion  v.  Vernon,  53  N.  Y.  351, 
and  cases  supra.  Although  dower  is  favored  by  the  courts,  it  is 
never  at  the  cost  of  a  disregard  of  express  provisions.  Nelsoji  v. 
Brown,  144  N.  Y.  384. 

Where  the  wife  of  a  lunatic,  in  consideration  of  about  one-third 
of  her  husband's  property,  released  her  inchoate  right  of  dower 
in  all  her  husband's  property,  held,  that,  as  she  received  a  pecu- 
niary consideration  therefor,  it  was  in  lieu  of  dower,  and  as  she 
had  retained  the  provision,  she  must  be  deemed  to  have  kept  it 
in  lieu  of  dower.  Jones  v.  Fleming,  104  N.  Y.  418.  The  elec- 
tion which,  under  the  statutes,  the  widow  is  deemed  to  have 
made  by  failing  within  one  year  to  enter  upon  lands  or  commence 
proceedings,  is  not  absolutely  conclusive  against  her  so  as  to  pre- 
vent her  being  relieved  therefrom  when  she  has  been  induced  to 
omit  such  election  by  fraudulent  representations.  The  statute 
deems  the  election  to  take  place  only  when  provision  has  been 
actually  made  for  her  by  will.  If,  by  reason  of  the  insolvency 
of  the  estate,  the  provision  fails,  she  is  not  deemed  to  have  made 
an  election.     Akin  v.  Kellogg,  39  Hun,  252,  119  N.  Y.  441. 

The  widow  cannot  retain  possession  after  the  forty  days  of 
quarantine  have  expired,  until  dower  is  assigned;  she  must  pro- 
ceed for  that  purpose.  Jaekson  v.  Donaghy,  7  Johns.  247;  Corey 
V.  People,  45  Barb.  263. 

It  was  held  in  White  v.  Kane,  51  Superior,  295  ;  S.  C.  7  Civ.  Pro. 
R.  267,  that  where  testator  devises  all  his  real  estate  to  his  wife, 
charged  generally  with  the  payment  of  debts,  but  the  will  did  not 


298 


DOWER. 


Art.  I.      The  Right  of  Dower. 


declare  the  devise  to  be  in  lieu  of  dower,  the  widow  was  not 
bound  to  elect,  and  the  sale  of  the  real  estate  by  her  and  her 
claim  of  dower  to  be  paid  out  of  the  proceeds  of  the  sale  were  not 
inconsistent. 

But  where  the  widow  has  accepted  a  benefit  under  the  will,  she 
cannot  be  allowed  to  disappoint  it,  but  must  concede  full  effect 
to  its  dispositions ;  she  cannot  where  she  has  elected  to  take  the 
benefit  of  the  provisions  of  the  will,  retain  such  benefits  and  be 
entitled  to  dower.     Lee  v.  Tower,  124  N.  Y.  370. 

To  the  same  effect  is  Matter  of  Nagel,  35  St.  Rep.  245,  which 
also  holds  that  possession  of  property,  the  income  of  which  was 
devised  the  widow  in  lieu  of  dower,  does  not  constitute  "  an 
entry  upon  the  lands  to  be  assigned  to  her  for  dower.'" 

An  election  by  a  widow  to  take  her  dower  from  the  proceeds 
of  the  sale  of  the  hotel  of  which  the  will  had  given  her  one-third 
of  the  profits,  and  which  she  had  managed  for  three  years,  was 
held  to  have  been  made  too  late  as  against  the  claims  of  credit- 
ors.    Matter  of  Nagel,  35  St.  Rep.  245,  12  Supp.  707. 

Where  a  widow  had  accepted  the  provisions  of  a  will  in  her 
favor,  expressed  to  be  in  satisfaction  of  her  dower,  the  fact  that 
a  portion  of  the  provisions  in  her  favor  is  ineffectual,  will  not 
entitle  her  to  dower  in  the  lands  embraced  in  the  invalid  provi- 
sion if  she  retains  the  other  benefits  conferred  by  the  will  and 
does  not  seek  to  avoid  her  election.  Lee  v.  Tozver,  124  N.  Y. 
370,  36  St.  Rep.  344,  modifying  and  affirming  34  St.  Rep.  829, 
12  Supp.  240. 

A  bequest  made  to  and  accepted  by  a  widow  in  lieu  of  dower 
is  held  by  her  by  right  of  purchase  and  is  not  chargeable  with 
debts  of  the  testator.  Dunning  v.  Diuining,  82  Hun,  462,  31 
Supp.  719,  64  St.  Rep.  397. 

A  devise  to  testator's  wife  of  the  use  for  life  of  his  estate  to  be 
"  enjoyed,  accepted  and  received  by  her  in  lieu  of  dower,  and  in 
addition  to  what  she  would  have  as  dowress  if  this  devise  was  not 
so  made  to  her,"  is  one  in  lieu  of  dower  and  an  acceptance  thereof 
forfeits  the  right  to  dower.  Nelson  v.  Broiun,  144  N.  Y.  384,  39 
N.  E.  Rep.  355,  63  St.  Rep.  697,  affirming  66  Hun,  311,  49  St. 
Rep.  562,  20  Supp.  978. 

Where  the  provisions  of  a  will  are  inconsistent  with  the  claim 
of  dower,  the  widow  is  put  to  her  election,  although  the  legacy  to 
her  is  not    declared  to  be  in  lieu  of  dower.      A  release  of  dower 


DOWER.  299 


Art.  I.     The  Right  of  Dower. 


made  at  the  request  of  the  widow's  co-executors,  will  not  be  pre- 
sumed fraudulent  where  the  co-executors  were  not  personally 
interested  in  the  matter,  were  not  acting  as  trustees  for  her,  were 
not  lawyers,  and  it  is  not  shown  that  any  false  statements  were 
made  to  her.  Ferris  v.  Ferris,  10  Misc.  320,  63  St.  Rep.  237,  30 
Supp.   982. 

A  widow's  claim  for  dower  as  well  as  her  right  to  other  provi- 
sions in  a  will  is  not  barred  by  accepting  the  provisions  of  the 
will,  unless  they  are  declared  to  be  in  lieu  of  dower,  or  to  permit 
her  to  enjoy  both  would  interfere  with  the  other  dispositions  and 
manifest  intention  of  the  will.  Matter  of  Smith,  i  Misc.  269,  22 
Supp.  1067. 

In  Grayv.  Gray,  5  App.  Div.  132,  the  rule  is  reiterated  that  the 
right  of  dower  is  favored  and  never  excluded  by  a  provision  for 
the  wife  except  by  express  words  or  by  necessary  implication, 
and  that  a  widow  cannot  be  put  to  an  election  between  a  testa- 
mentary provision  and  her  dower  unless  it  is  clear  to  a  demons- 
tration that  the  testator  intended  she  should  elect. 

A  provision  in  a  will  directing  the  executors  to  distribute  the 
estate  to  the  widow  and  children  in  such  manner  and  at  such 
times  as  they  should  judge  to  be  for  the  best  interest  of  the  widow 
and  children,  does  not  put  the  widow  to  her  election  ;  but  she  is 
entitled  to  dower  in  addition  to  the  provision  made  for  her. 
Conner  V.  Watson,  i  App.  Div.  54,  ^y  Supp.  71,  72  St.  Rep.  224. 

Sub.  5.   How    Dower  is  Released  or  Barred.     §  1604  ok  Code. 
Laws  i8g6.  Chap.  547,  §§  186,  187. 

§  1604.  Action  barred  by  assignment  of  dower. 

The  acceptance,  liy  a  widow,  of  ao  assignment  of  dower,  in  satisfaction  of 
her  claim  upon  the  property  in  question,  bars  an  action  for  dower,  and  may  be 
pleaded  by  any  defendant. 

Sections  186  and  187  of  chap.  547,  Laws  1896,  read  as  follows: 

§  186.  Divorced  woman  may  release  dower, 

A  woman  who  is  divorced  from  her  husband,  whether  such  divorce  be  abso- 
lute or  limited,  or  granted  in  his  or  her  favor  by  any  court  of  competent  juris- 
diction, may  release  to  him,  by  an  instrument  in  writing,  sufficient  to  pass  title 
to  real  estate,  her  inchoate  right  of  dower  in  any  specific  real  property  theretofore 
owned  by  him,  or  generally  in  all  such  real  property,  and  such  as  he  shall  there- 
after acquire. 


300 


DOWER. 


Art.  I.     The  Right  of  Dower. 


§  187.  Married  vroraan  may  release  dowrer  by  attorney. 

A  married  woman  of  full  age  may  release  her  inchoate  right  of  dower  in  real 
property  by  attorney  in  fact  in  any  case  where  she  can  personally  release  the 
same. 

The  heir  may  voluntarily  assign  the  widow's  dower;  the 
admeasurement  only  fixes  the  location  and  extent,  it  does  not 
confer  the  right.  RiitJierford  v.  Graham,  4  Hun,  796.  Mesne 
profits  were  not  recoverable  by  the  widow  under  the  Revised 
Statutes  until  the  assignment  of  dower.  Kyle  v.  Kyle^  6j  N.  Y. 
400.  A  parol  assignment  of  dower,  followed  by  immediate  occu- 
pation, is  valid  and  defeats  the  seizin  of  the  heirs.  Gibbs  v. 
Estey,^2  Hun,  266.  Where  there  is  an  outstanding  life  estate  in 
the  widow  of  a  former  owner,  the  widow  of  one  of  the  heirs  of 
the  latter,  upon  the  termination  of  such  life  estate,  is  entitled 
to  an  assignment  of  dower  although  she  has  joined  in  sales  of 
the  real  estate  and  received  her  proportion  of  the  assets.  Aik- 
man  v.  Harsell,  63  How.   no. 

Where  the  wife  gave  a  release  of  dower  to  a  divorced  husband, 
held,  valid  against  a  mortgagee  with  notice  of  the  fact ;  Savage  v. 
Crill,  19  Hun,  4,  affirmed,  80  N.  Y.  630 ;  but,  during  coverture, 
a  married  \yoman  cannot  alien  or  bind  her  right  of  dower  as  .such 
to  a  stranger;  Marvin  v.  Smith,  46  N.  Y.  571  ;  Merchants  Bank 
V.  Thompson,  55  N.  Y.  7;  Elmendorfv.  Lockzuood,  57  N.  Y.  322; 
or  to  her  husband.  Graham  v.  Van  Wyck,  14  Barb.  531  ;  White 
V.  Wager,  25  N.  Y.  328;    Winans  v.  Peebles,  32  N.  Y.  423. 

A  wife  has  no  estate  in  the  lands  of  her  husband  during  his  life 
which  she  can  convey.  Her  inchoate  right  of  dower  is  but  a 
contingent  claim,  incapable  of  transfer  by  grant  or  conveyance, 
but  susceptible  only,  during  its  inchoate  state,  of  extinguishment. 
Such  an  extinguishment  can  only  be  effected  by  a  conveyance  to 
the  grantee  of  the  husband.  Where,  therefore,  the  wife  joins 
with  the  husband  in  a  conveyance  of  his  lands,  this  does  not  con- 
stitute her  a  grantor  of  the  premises,  or  vest  in  the  grantee  any 
other  or  greater  estate  than  there  is  derived  from  the  conveyance 
of  the  husband.  Witthaiis  v.  Schack,  105  N.  Y.  332.  The  wife 
cannot  effectually  release  her  right  of  dower  to  a  stranger;  a 
release  to  one  not  in  possession  of  or  having  a  vested  right  in  the 
premises,  is  void.  The  fact  that  the  instrument  runs  to  the  chil- 
dren of  the  husband  does  not  effect  a  release.  A  release  to  her 
husband  would  not  be  valid ;  she  can  only  release  by  joining  in 


DOWER.  301 


Art.  I.     The  Right  of  Dower. 


conveyance  with  her  husband.  Armstrong  v.  Armstrong,  i  St. 
Rep.  529.  The  widow  of  a  vendee,  who  has  paid  part  of  the 
purchase-money  for  lands,  is  entitled  to  dower  subject  to  the  lien 
of  the  vendor  for  the  purchase-money,  and  with  the  equitable 
right  to  have  her  husband's  personal  estate  applied  on  the  pur- 
chase-money. WilliajHS  V.  Kinney,  43  Hun,  i.  The  court  will 
not  revive  a  satisfied  mortgage  for  the  purpose  of  limiting  the 
widow's  dower  to  the  remaining  equity.  Everson  v.  McMullcn^ 
42   Hun,  369. 

K  feme  covert  is  not  barred  of  her  right  of  dower  by  joining 
with  her  husband  in  a  conveyance  if  she  were  a  minor  at  the  time 
cf  the  acknowledgment.  Priest  v.  Cum:niiigs,  16  Wend.  617; 
Sanfordv.  McLean,  3  Paige,  117;  Cunningham  w.  Knight,  i  Barb. 
399;  SJierman  v.  Garfield,  i  Den.  329. 

But  where  a  married  woman  of  full  age  unites  with  her  hus- 
band in  a  conveyance  of  real  property  in  which  she  is  entitled  to 
dower,  it  operates  as  an  extinguishment  of  her  right  not  only  as 
to  the  grantee  and  his  successors  in  interest,  but  also  as  to  third 
persons.  Elmendorf  v.  Lockwood,  4  Lans.  393  ;  S.  C.  57  N-  Y. 
322;  Gillilan  v.  Szvift,  14  Hun,  574.  A  sale  under  a  judgment 
obtained  before  the  marriage  will  divest  the  wife's  right  of  dower. 
Sanford  v.  MsLeajz,  3  Paige,  1 17.  But  where  a  husband  has  con- 
veyed his  real  estate  in  trust,  a  subsequent  mortgage  executed 
by  himself  and  wife,  in  which  the  trustee  did  not  join,  does  not 
affect  the  wife's  right  of  dower.     Marvin  v.  Smith,  4.6  N.  Y.  571, 

Where  the  widow  received  compensation  for  her  dower  in  other 
lands,  which  she  accepts  as  a  satisfactory  equivalent,  she  cannot 
claim  dower,  especially  after  lapse  of  time  in  which  the  lands  as 
to  which  she  claims  dower  have  been  improved.  Jones  v.  Poivell, 
6  Johns.  Ch.  194.  Where,  on  a  sale  under  a  surrogate's  oder, 
the  executrix  and  widow,  with  knowledge  of  the  sale,  remained 
silent,  she  was  held  estopped  as  to  dower,  the  terms  of  sale  hav- 
ing been  for  a  clear  title.      Dougherty  v.   Topping,  4  Paige,  94. 

And  where  a  testator,  by  will,  authorized  his  executors  to  sell 
his  real  estate  and  allow  the  widow  the  use  of  one-third  of  the 
proceeds  of  the  sale,  and  on  such  sale  the  widow  accepted  and 
enjoyed  the  proceeds  of  the  sale  for  a  number  of  year^,  held,  she 
was  estopped  from  setting  up  any  claim  to  dower  in  the  premises 
in  the  hands  of  an  innocent  grantee  who  was  permitted  to  receive 
title  in  her  presence  and  with  the  assurance  that  her  dower  was 


302 


DOWER. 


Art.  I.     The  Right  of  Dower. 


extinguished,  her  acts  operate  as  an  estoppel.  Wood  v.  Scely,  32 
N.  Y.  105.  Sale  in  partition  extinguishes  the  inchoate  right  of 
dower  of  the  wife,  whether  she  be  an  adult  or  an  infant.  Jack- 
son V.  Edwards,  7  Paige,  386.  But  not  unless  she  is  a  party  to 
the  action.  Van  Gcldcr  v.  Post,  2  Edw.  577.  A  judgment  against 
a  husband,  recovered  after  marriage,  will  be  a  lien  subordinate  to 
the  wife's  right  of  dower;  such  right  attaches  to  a  surplus  in  the 
same  manner  that  judgments  do.  N.  Y.  Life  his.  Co.  v.  Mayer, 
12  St.  Rep.  119. 

The  wife  must  also  be  a  party  in  foreclosure,  in  order  to  bar 
her  dower.  Mills  v.  Van  Voorhis,  20  N.  Y.  412.  Where  the 
wife  agreed  to  accept  an  annuity  in  satisfaction  for  her  mainte- 
nance and  dower,  if  the  agreement  is  violated  by  the  husband, 
dower  is  not  barred.  Day  v.  West,  2  Edw.  592.  An  ante-nuptial 
agreement  for  a  settlement  not  carried  into  effect  by  the  husband 
in  his  lifetime,  is  not  a  bar  of  the  wife's  dower.  Pierce  v.  Pierce, 
9  Hun,  50;  S.  C.  71  N.  Y.  154.  Nor  is  an  agreement  with  her 
husband  that,  in  consideration  of  her  enjoyment  of  her  separate 
property,  she  should  relinquish  dower,  a  bar.  Totvnsend  v.  Tozun- 
send,  2  Sandf.  711. 

A  widow's  receipt  for  years  of  one-third  of  the  rents  reserved 
on  her  husband's  demise,  will  not  bar  her  dower.  Ellieott  v. 
Mosier.,  7  N.  Y.  201.  A  statutory  foreclosure  and  sale  under  a 
purchase-money  mortgage  bars  the  wife's  right  of  dower,  although 
she  did  not  join  in  the  mortgage.  Brackett  v.  Bauni,  50  N.  Y.  8. 
The  recital  that  a  mortgage  was  given  for  purchase-money,  if 
untrue  in  fact,  will  not  bar  the  wife's  right  of  dower.  Taylor 
V.  Post,  30  Hun,  446.  A  quitclaim  or  release  by  a  married 
woman  to  a  stranger  to  the  title  is  insufificient  to  divest  her  of 
htM-  right  of  dower.  Merchants'  Bank  v.  TJionipson,  55  N.  Y.  7. 
But  it  seems  an  effectual  release  of  dower  may  be  made  to  a  ten- 
ant for  life,  remainderman  or  other  owner  of  less  than  the  legal 
fee.     Elmendorf  v.  Lockiuood,  57  N.  Y.  322. 

Dower  cannot  be  barred  by  the  wife's  agreement,  in  articles  of 
separation,  to  release  her  dower  in  her  husband's  land,  although 
she  accepts  the  pecuniary  provision  thereby  made  for  hej-  mainte- 
nance. Guidet  v.  Broivn,  3  Abb.  N.  C.  295.  The  dower  of  a 
wife  in  mortgaged  premises  is  not  barred  by  a  foreclosure  in 
which  the  only  allegation  was  that  she  claimed  an  interest  subse- 
quent to  the  mortgage,  when  she  was  the  wife  of  the  mortgagor 


DOWER.  303 


Art.  I.     The  Right  of  Dower. 


when  the  mortgage  was  executed.  Ocujiipangh  v.  Wing,  12 
Week.  Dig.  566.  A  wife  of  a  part  owner,  who  was  a  party  in 
partition,  is  barred  by  the  decree,  although  the  husband  died 
before  judgment.  Jordan  v.  Va)i  Epps,  85  N.  Y.  427.  But  a 
partition  in  which  the  widow  appeared  and  claimed  dower,  but 
no  decree  was  made  granting  dower  to  her,  was  held  not  a  bar. 
Matter  of  Hughes,  3  Redf.  18. 

Where  a  deed  from  husband  to  wife  is  declared  to  be  fraudu- 
lent as  to  his  creditors,  and  a  sale  is  ordered,  this  does  not 
divest  her  inchoate  right  of  dower;  the  court  cannot  direct  a 
payment  to  her  out  of  the  proceeds,  of  the  estimated  value  of  her 
interest.  Loivry  v.  Smith,  9  Hun,  514.  A  widow  may  maintain 
an  action  to  set  aside  a  deed  of  trust  for  the  benefit  of  creditors, 
executed  by  himself  and  her  husband,  on  the  ground  of  fraudu- 
lent representations.  Witthaus  v.  ScJiack,  24  Hun,  328.  Where 
a  deed  is  declared  void,  the  release  by  the  grantor's  wife  of  her 
right  of  dower  fails,  as  being  to  a  stranger  to  the  title.  Haniiiwnd 
v.  Pennock,  5  Lans.  358;  S.  C.  affirmed,  61  N.  Y.  145. 

The  provisions  of  the  Revised  Statutes  that  no  judgment  or 
decree  procured  against  the  husband  and  no  laches  or  default  of 
his  shall  prejudice  the  wife's  right  to  dower,  do  not  apply  to  a 
judgment  recovered  against  the  wife.  Feitner  \.  Hoeger,  15  St. 
Rep.  377. 

Where  husband  and  wife  were  tenants  by  entirety  and  were 
divorced  in  an  action  brought  by  the  husband,  who  remarried,  it 
was  held  that  the  effect  of  the  divorce  was  to  constitute  the  ten- 
ancy only  in  common  and  that  the  second  wife  was  entitled  to 
dower  in  the  husband's  one-half  of  the  premises.  Stelz  v.  Sehreek, 
32  St.  Rep.  133. 

The  statute  authorizing  the  sale  of  land  in  an  action  to  ad- 
measure dower,  does  not  affect  inchoate  right  of  dower  in  the 
wife  of  the  heir,  if  she  is  not  a  party  to  the  action  for  the  ad- 
measurement of  the  dower  of  the  widow  of  the  ancestor.  Jonrdan  v. 
Haran,  56  Supr.  Ct.  185  ;  s.  c.  18  St.  Rep.  858,  3  N.  Y.  Supp.  541. 

As  to  rights  of  the  widow  in  a  peculiar  case,  see  Everson 
v.  McMullcn,  113  N.  Y.  293. 

A  release  executed  by  a  wife  in  connection  with  her  husband's 
deed  to  a  purchaser,  although  if  made  to  a  stranger  would  have 
been  void,  is  in  such  case  valid  to  free  the  premises  from  her 
dower  right.      Irving  v.  Campbell,  18  St.  Rep.  966. 


304 


DOWER. 


Art.  I.     The  Right  of  Dower. 


Plaintiff's  husband  was  the  owner  of  an  interest  in  certain  real 
property,  subject  to  a  mortgage  given  by  his  grantors ;  such  interest 
was  sold  in  bankruptcy  proceedings  to  defendants,  subject  to  said 
mortgage,  and  also  to  plaintiff's  inchoate  right  of  dower;  defend- 
ants refused  to  pay  interest  on  the  mortgage  for  the  purpose  of 
compelling  a  foreclosure  in  order  to  cut  off  plaintiff's  right  of 
dower,  and  on  the  sale  purchased  it  for  the  amount  of  the  mort- 
gage ;  held,  that  defendants  owed  a  duty  to  plaintiff  to  apply  the 
fund  left  in  their  hands  to  the  payment  of  the  mortgage,  so  as  to 
relieve  her  right  from  extinguishment  by  a  foreclosure  and  sale; 
that  their  purchase  at  the  sale  was  inconsistent  with  their  duty  to 
her,  and,  therefore,  that  the  judgment  and  purchase  were  not  a 
bar  to  her  recovery  of  dower.     Miuiroe  v.  Crouse,  36  St.  Rep.  772. 

A  wife  acquires  no  inchoate  right  of  dower  in  lands  inherited 
by  her  husband  if  they  are  estates  in  remainder  and  not  in  pos- 
session, and  she  has  no  rights  therein  which  interfere  with  her 
husband  in  dealing  with  such  estates,  and  he  may  subject  them  to 
such  liens  as  he  may  choose.  Her  claim  can  only  be  asserted 
through  her  husband's  title  to  the  lands;  if  her  title  in  the  real 
estate  came  to  him  subject  to  a  lien,  her  dower  therein  is  also  sub- 
ject to  such  lien.      Clark  v.  Clark,  84  Hun,  362. 

A  settlement  of  an  inchoate  right  of  dower  entered  into  with 
the  advice  of  counsel,  held  a  bar  to  an  action  for  admeasurement 
of  dower.  Spannocchia  v.  Loew,  87  Hun,  167,  67  St.  Rep.  736,  33 
Supp.  1050. 

A  widow  has  no  dower  in  real  estate  of  a  partnership  of  which 
her  husband  was  a  member.  Riddellv.  Riddell,  85  Hun,  482,  33 
Supp.  99,  65  St.  Rep.  702;  Dawson  v.  Parsons,  lo  Misc.  428,  63 
St.  Rep.  320,  31  Supp.  78. 

A  right  to  dower  cannot  be  asserted  with  respect  to  lands  pur- 
chased with  the  husband's  money,  but  not  conveyed  or  agreed  to 
be  conveyed  to  him.  Phelps  v.  PJielps,  143  N.  Y.  197,  38  N.  E. 
Rep.  280,  62  St.  Rep.  156,  reversing  75  Hun,  577. 

The  act  of  the  committee  of  a  lunatic  in  joining  with  her  husband 
in  executing  a  deed,  does  not  extinguish  her  inchoate  right  of 
dower.  Matter  of  Dunn,  64  Hun,  18,  45  St.  Rep.  830,  22  Civ. 
Pro.  R.  118,  18  Supp.  723. 

A  release  of  dower  made  directly  to  the  husband  does  not 
divest  the  wife's  right.  Wightman  v.  Schliefer,  45  St.  Rep.  698, 
18  Supp.  551. 


DOWER.  305 


Art.  I.     The  Right  of  Dower. 


But  under  chapter  300  of  the  Laws  of  1878,  providing  that  a 
married  woman  may  execute  a  power  of  attorney  in  the  same 
manner  as  if  she  were  single,  the  wife  may  give  a  power  of  attorney 
to  her  husband  authorizing  him  to  execute  a  release  of  her  right 
of  dower.  Wronkow  v.  Oakley,  133  N.  Y.  505,  45  St.  Rep.  882, 
28  Abb.  N.  C.  409,  reversing  64  Hun,  217,  45  St.  Rep.  835,  19 
Supp.  51. 

Where  it  appeared  that  in  the  lifetime  of  her  husband,  who 
was  a  lunatic,  a  woman  had,  for  a  valuable  consideration,  executed 
to  his  committee  a  release  of  her  dower  right  and  had  retained 
the  consideration  for  seventeen  years  after  her  husband's  death, 
without  making  any  demand  for  admeasurement  of  dower,  it  was 
held  her  right  to  dower  was  barred.  Dorenius  v.  Doremus,  66 
Hun,  III,  49  St.  Rep.  800,  21  Supp.  13. 

Where  a  married  woman  released  her  inchoate  right  of  dower 
for  a  money  consideration  prior  to  her  husband's  death,  she  can- 
not after  that  event  maintain  an  action  for  admeasurement  of 
dower  on  the  ground  of  fraud  in  procuring  the  release,  without 
paying  or  tendering  the  amount  received  by  her.  Spannochia  v. 
Loew,  87  Hun,  167,  33  Supp.  1050,  67  St.  Rep.  736. 

An  ante-nuptial  contract  in  order  to  bar  a  woman's  dower, 
must  be  upon  a  valuable  consideration  and  not  be  a  merely 
nominal  provision.  Graham  v.  Graham^  6y  Hun,  329,  51  St.  Rep. 
789,  22  Supp.  299.  It  was  further  held  on  appeal,  143  N.  Y.  573, 
38  New  Eng.  Rep.  722,  that  where  it  appeared  that  a  release  of 
dower  was  not  a  condition  of  the  engagement,  that  no  negotia- 
tion in  relation  thereto  was  had  prior  to  the  execution  of  the  in- 
strument, that  the  husband  stated  he  wanted  it  arranged  so 
that  he  could  buy  and  sell  real  estate  without  interference,  and 
refused  to  marry  unless  this  was  done,  but  did  not  explain  that  it 
would  be  a  release  of  dower,  that  no  consideration  therefor  was 
given  and  no  provision  made  for  her  support  and  that  she  acted 
without  the  aid  of  counsel,  that  she  was  entitled  to  her  dower  right. 

The  foreclosure  of  a  purchase-money  mortgage  does  not  cut  off 
the  inchoate  right  of  dower  of  the  mortgagor's  wife,  unless  she  is 
made  a  party  to  the  foreclosure  suit,  and  the  mortgagor  who  buys 
in  the  property  as  to  her  becomes  merely  a  mortgagee  in  possession. 
Campbell  v.  Ellwanger,  81  Hun,  259,  62  St.  Rep.  754,  30  Supp.  792. 

Where  the  wife  of  the  owner  did  not  join  in  the  first  of  two 
mortgages,  but  joined  in  the  second,  which  was  foreclosed,  and 
[Special  Actions  —  20.] 


306  DOWER. 


Art.  I.     The  Right  of  Dower. 


thereafter  the  first  mortgage  was  foreclosed  and  purchase  there- 
under made  by  the  mortgagor's  predecessor  in  title,  it  was  held 
that  the  dower  right  was  cut  off  by  the  first  mortgage  and  was 
not  revived  by  the  second.  Caldcr  v.  Joikins,  42  St.  Rep.  38, 
16  Supp.  797. 

The  only  provisions  of  the  statute  relating  to  the  relinquish- 
ment of  dower  by  a  woman  before  marriage,  are  those  which  au- 
thorize her  to  relinquish  her  dower  on  receiving  an  equivalent  for 
it  by  way  of  jointure.     Ennis  v.  Emits,  48  Hun,  11. 

An  ante-nuptial  contract  bars  dower,  but  it  will  be  rigidly  scruti- 
nized and  held  void  if  procured  by  deception  or  false  pretences; 
the  burden  of  showing  good  faith  is  clearly  on  the  husband,  where 
the  provision  made  is  disproportionate  and  inadequate.  Pierce  v. 
Pierce,  71  N.  Y.  154.     See  Curry  v.  Curry,  10  Hun,  366. 

Sub.  6.  How  Dower    Affected    by    Divorce.       Laws    1896, 
Chap.  547,  §§  176,  182. 

§  176.  When  dower  barred  by  misconduct. 

In  case  of  a  divorce,  dissolving  the  marriage  contract,  for  the  misconduct  of 
the  wife,  she  shall  not  be  endowed. 

g  182.  When  provision  in  lieu  of  dower  is  forfeited. 

Every  jointure,  devise  and  pecuniary  provision  in  lieu  of  dower  is  forfeited 
by  the  woman  for  whose  benefit  it  is  made,  in  a  case  in  which  she  would  forfeit 
her  dower;  and  on  such  forfeiture,  an  estate  so  conveyed  for  jointure,  or  de- 
vise, or  a  pecuniary  provision  so  made,  immediately  vests  in  the  person  or 
legal  representatives  of  the  person  in  whom  they  would  have  vested  on  the  de- 
termination of  her  interest  therein,  by  her  death. 

Provision  is  also  made  by  sections  1759  and  1760  of  the  Code 
with  reference  to  the  dower  interest  of  the  wife  in  case  of  a 
divorce  obtained  by  her  or  her  husband.  These  sections  are  sub- 
stituted for  the  provisions  of  2  R.  S.  146,  ^§  43,  45,  46  and  47. 

Under  the  Revised  Statutes  the  adultery  of  the  wife  bars  dower 
only  where  there  is  a  decree  of  divorce.  Reynolds  v.  Reynolds,  24 
Wend.  193;  Cooper  v.  Whitney,  3  Hill,  95  ;  SeJiiffer  v.  Pruden,  7 
J.  &  S.  167;  Pitts  V.  Pitts,  52  N.  Y.  593;  Pundlc  v.Van  Inivegan, 
9  Civ.  Pro.  R.  328.  The  forfeiture  is  not  a  consequence  of 
the  offence  but  of  the  judgment  founded  thereon  ;  and  where,  in  an 
action  of  divorce  a  vinculo,  brought  by  a  husband  against  the 
wife,  the  referee  found  the  wife  guilty  of  adultery,  but  also  found 
the  husband  guilty  of  the  same  offence,  and  a  judgment  was  en- 


DUNVER.  307 


Art.  I.     The  Right  of  Dower. 


tered  dismissing  the  complaint,  held  that   the  wife  had  not  lost 
her  right  of  dower.      ScJiiffcr  v.  Priidcn,  64  N.  Y.  47. 

A  divorce  a  uicnsa  ct  tJioro  does  not  bar  the  right  of  dower. 
Day  V.  West,  2  Edw.  Ch.  292.  A  divorce  dissolving  the  marriage 
for  the  husband's  adultery  does  not  bar  the  wife's  right  of  dower. 
An  absolute  divorce,  for  causes  arising  after  the  marriage,  is 
governed  by  statute ;  it  is  prospective  in  its  operation,  and  has  no 
other  effect  upon  the  marriage  relation  than  such  as  is  declared  by 
statute.  \Yait  v.  Wait,  4  N.  Y.  95  ;  Forrest  v.  Forrest,  6  Duer. 
102.  The  .same  rule  applies  in  case  of  limited  divorce.  Craiu  v. 
Cavana,  62  Barb.  109.  A  marriage  within  this  State,  of  a  woman 
with  a  man  who  has  been  divorced  for  his  own  adultery,  the  former 
wife  being  living  at  the  time  of  such  marriage,  is  void,  and  she 
is  not  entitled  to  dower  in  his  property.  Cropsy  v.  Ogden,  1 1  N. 
Y.  228. 

A  wife  who  has  obtained  a  divorce  in  her  favor  is  entitled,  not- 
withstanding her  marriage,  upon  her  former  husband's  death,  to 
dower  in  his  real  property,  and  to  one-third  of  his  personal  prop- 
erty; Van  VoorJiis  x.  Brintnall,  23  Hun,  260,  reversed  on  other 
grounds,  86  N.  Y.  18;  but  a  woman  divorced  a  vineulo  for  the 
adultery  of  her  husband,  is  not  entitled  to  dower  in  lands  of  which 
he  became  seized  after  divorce ;  otherwise,  however,  as  to  lands 
of  which  he  was  seized  during  coverture  and  previous  to  the 
divorce.  Kade  v.  Laubcr,  16  Abb.  (N.  S.)  288.  The  provision 
of  §  I759»  subdivision  4,  is  as  follows:  "  Where  final  judgment 
is  rendered  dissolving  the  marriage,  the  plaintiff's  inchoate  right 
of  dower  in  any  real  property  of  which  the  defendant  then  is  or 
was  theretofore  seized,  is  not  affected  by  the  judgment." 

The  statute  of  another  State  declaring  the  effect  of  the  desertion 
by  a  wife  from  her  husband  to  be  to  bar  her  dower,  can  have 
no  force  or  effect  in  this  State.  Riindle  v.  l^an  Imvegan,  9  Civ. 
Pro.  R.  328. 

The  dower  of  the  wife  divorced  in  another  State  is  to  be  con- 
strued by  the  laws  of  this  State,  and  to  deprive  her  of  dower  here, 
the  misconduct  provided  for  by  the  Revised  Statutes  must  be 
adultery,  and  where  the  decree  was  based  upon  the  abandonment 
of  her  hu.sband,  she  does  not  forfeit  her  right.  ]''an  Cleafv. 
Burns,  133  N.  Y.  540,  44  St,  Rep.  98,  reversing  62  Hun,  250, 
42  St.  Rep.  26,  16  Supp.  667. 

Willful  desertion  and  absence  of  a  wife  from   her  husband,  for 


3o8 


DOWER. 


Art.  2.     Limitation  of  the  Action  by  Lapse  of  Time. 


which  he  has  procured  an  absolute  divorce,  in  another  State,  which 
is  vaHd,  and  effectual  against  the  wife,  will  deprive  her  of  dower. 
Van  Cleafw.  Burns,  43   Hun,  461. 

A  woman  is  entitled  to  dower  in  lands  acquired  by  her  husband 
after  her  divorce  from  him,  where  she  retains  her  right  to  dower, 
he  being  the  party  in  fault.     Kade  v,  Lauber,  16  Abb.  (N.  S.)  288. 

Where  a  marriage  has  been  annulled  by  a  judicial  decree  upon 
the  ground  that  when  it  was  contracted  the  husband  had  another 
wife  living,  who  had  absented  herself  for  more  than  five  successive 
years  immediately  preceding  the  second  marriage,  without  being 
known  by  him  to  be  living,  although  until  it  was  annulled  it  was 
voidable  only  and  not  void,  the  wife  is  not  entitled  to  dower  in 
the  real  estate  owned  by  the  husband  at  the  date  of  the  decree. 
Price  V.  Price,  124  N.  Y.  589,  reversing  33  Hun,  76,  and  distin- 
guishing Wait  V.  Wait,  4  N.  Y.  95  ;  Jones  v.  Zoller,  29  Hun,  551, 
32  Hun,  280,  37  Hun,  229,  104  N.  Y.  418;  Brower  v.  Bowers,  i 
Abb.  Ct.  of  App.  Dec.  214;  Griffin  v.  Banks,  37  N.  Y.  621. 

Sub.  7.   Right    of    Widow    to    Quarantine    and    Crops.     Laws 

1896,  Chap.  547,  §§  184,  185. 

§  184.  Widow's  quarantine. 

A  widow  may  remain  in  the  chief  house  of  her  husband  forty  days  after  his 
death,  whether  her  dower  is  sooner  assigned  to  her  or  not,  without  being  liable 
to  any  rent  for  the  same;  and  in  the  meantime  she  may  have  her  reasonable 
sustenance  out  of  the  estate  of  her  husband. 

§  185.  Widow  may  bequeath  a  crop. 

A  woman  may  bequeath  a  crop  in  the  ground  of  land  held  by  her  in  dower. 

A  widow  is  entitled  to  grains  and  fruits  ungathered  at  the  time 
of  the  assignment  of  dower,  but  if  dower  has  not  been  assigned 
and  she  takes  them,  she  is  liable  to  the  heir  and  cannot  retain  a 
third,  either  as  dowress  or  distributee.  Kain  v.  Fisher,  6  N.  Y. 
597,  cited  Matter  of  Chamberlain,  140  N.  Y.  392;  see  Clark  v. 
Bailor/,  I  T.  &  C.  58. 


ARTICLE  n. 
Limitation  of  the  Action  by  Lapse  of  Time. 


§  1596. 


55  1596.  [Am'd,  1882.]     Limitation  of  action  for  dower. 

An  action  for  dower  must  be  commenced  by  a  widow,  within  twenty  years 
after  the  death  of  her  husband;  but  if  she  is,  at  the  time  of  his  death,  either: 
I.  Within  the  age  of  twenty-one  years;  or 


DOWER.  309 


Art.  2.     Limitation  of  the  Action  by  Lapse  of  Time. 


2.  Insane;  or 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  upon  conviction  of  a 
criminal  offence,  for  a  term  less  than  for  life; 

The  time  of  such  a  disability  is  not  a  part  of  the  time  limited  by  this  section. 
And  if  at  any  time,  before  such  claim  of  dower  has  become  barred  by  the  above 
lapse  of  twenty  years,  the  owner  or  owners  of  the  lands  subject  to  such  dower, 
being  in  possession,  shall  have  recognized  such  claim  of  dower  by  any  state- 
ment contained  in  a  writing  under  seal,  subscribed  and  acknowledged  in  the 
manner  entitling  a  deed  of  real  estate  to  be  recorded,  or  if  by  any  judgment  or 
decree  of  a  court  of  record  within  the  same  time  and  concerning  the  lands  in 
question,  wherein  such  owner  or  owners  were  parties,  such  right  of  dower  shall 
have  been  distinctly  recognized  as  a  subsisting  claim  against  said  lands,  the 
time  after  the  death  of  her  husband,  and  previous  to  such  acknowledgment  in 
writing  or  such  recognition  by  judgment  or  decree,  is  not  a  part  of  the  time 
limited  by  this  section. 

Demand  of  dower  before  suit  brought  is  not  necessary.  Jack- 
son V.  Churchill,  7  Cow.  287;  Ellicott  v.  Mosier,  7  N.  Y.  201. 
The  widow's  omission  to  demand  her  dower  will  not  prejudice 
her  claim  to  damages.  Hitchcock  v.  Harrington,  6  Johns.  290. 
Under  the  former  Code  an  action  would  lie  to  have  dower  ad- 
measured and  for  the  rents  and  profits.  Brown  v.  Brown,  31 
How.  481.  It  is  no  objection  to  the  action  that  the  party  was 
not  in  actual  possession  of  the  lands  out  of  which  dower  is  claimed, 
or  that  six  months  have  not  elapsd  since  the  death  of  her  husband. 
Townscnd  V.  Townsend,  2  Sandf.  711.  It  was  said  by  Chancellor 
Kent  (Commentaries,  vol.  4,  p.  72),  that  the  jurisdiction  of 
Chancery  over  the  claim  of  dower  has  been  thoroughly  examined, 
clearly  asserted  and  definitely  established.  Hazen  v.  Thurber,  4 
Johns.  Ch.  604;  Badgley  v.  Halsey,  4  Paige,  98;  Swain  v.  Perrine, 
5  Johns.  Ch.  482;  Hale  v.  James,  6  Johns.  Ch.  258;  Russell  v. 
Austin,  I  Paige,  192;  Bell  v.  The  Mayor  of  New  York,  10  Paige, 
49.  The  Statute  of  Limitations  cannot  be  interposed  as  a  bar 
where  the  widow  has  been  in  possession  of  her  dower  either  with 
or  without  suit,  and  has  been  subsequently  ousted.  Sayre  v. 
Wisner,  8  Wend.  661  ;  Payne  v.  Becker,  87  N.  Y.  153;  Saylcs  v, 
Naylor,  5  St.  Rep.  816.  The  receipt  by  the  widow  of  one-third 
of  the  rent  of  the  real  estate,  in  lieu  of  dower,  for  several 
years  after  the  death  of  her  husband,  does  not  constitute  an  as- 
signment of  dower  or  bar  her  action.  Aikman  v.  Harsell,  98  N. 
Y.  186. 


310 


DOWER. 


Art.  3.     The  Remedy  and  the  Parties  to  the  Action. 


ARTICLE  III. 

The  Remedy  and  Parties  to  the  Action.    §§  1597,  1598, 

1599. 

§  1597.  Against  whom  action  to  be  brought. 

Where  the  property,  in  which  dower  is  claimed,  is  actually  occupied,  the 
occupant  thereof  must  be  made  defendant  in  the  action.  Where  it  is  not  so 
occupied,  the  action  must  be  brought  against  some  person  exercising  acts  of 
ownership  thereupon,  or  claiming  title  thereto,  or  an  interest  therein,  at  the  time 
of  the  commencement  of  the  action. 

§  1598.   Who  may  be  joined  as  defendants. 

In  either  of  the  cases  specified  in  the  last  section,  any  other  person,  claiming 
title  to,  or  the  right  to  the  possession  of,  the  real  property  in  which  dower  is 
claimed,  may  be  joined  as  defendant  in  the  action. 

§  1599.   Id. ;  where  defendants  claim  in  severalty. 

In  an  action  to  recover  dower,  in  a  distinct  parcel  of  real  property  of  which 
the  plaintiff's  husband  died  seized,  or  in  all  the  real  property  which  he  aliened 
by  one  conveyance,  all  the  persons  in  possession  of,  or  claiming  title  to,  the  prop- 
erty, or  any  part  thereof,  may  be  made  defendants,  although  they  possess  or 
claim  title  to  different  portions  thereof  in  severalty. 

The  Supreme  Court,  of  course,  by  virtue  of  its  general  powers, 
has  jurisdiction  in  actions  for  dower — ^  217,  Code  of  Civ.  Pro. — 
and  the  county  courts —  §  340,  subd.  i.  The  provisions  giving  a 
surrogate  jurisdiction  in  matters  of  dower  were  not  re-enacted, 
that  remedy  being  regarded  by  the  codifiers  as  superfluous. 

It  is  said  by  the  codifiers  that  the  present  chapter  is  a  substitute 
for  the  four  methods  heretofore  existing,  to  which  a  widow  claim- 
ing dower  might  resort,  viz.:  i.  An  action  of  ejectment  for 
dower  brought  against  the  person  in  possession,  in  which  after 
her  title  has  been  established,  her  portion  was  admeasured. 
2.  Proceedings  for  the  admeasurement  of  dower  to  be  taken  in  the 
Supreme  Court,  a  County  Court  or  a  Superior  City  Court,  or  be- 
fore a  surrogate  against  the  tenant  of  the  freehold,  and  to  be  fol- 
lowed, if  necessary,  by  an  action  of  ejectment  for  the  portion  so 
admeasured.  3.  A  suit  in  equity  in  which  both  the  right  of  the 
plaintiff  and  the  portion  to  be  assigned  her  were  to  be  determined. 
4.  An  action  for  the  admeasurement  of  dower.  The  inchoate 
right  of  dower  is  deemed  a  subsisting  and  valuable  interest. 
Stack  V.  Ward,  30  Hun,  555. 

In  an  action  by  a  widow  for  an  assignment  of  dower  and  for  her 
just  proportion  of  the  rents  and  profits  thereof,  all  the  heirs-at-law 


DOWER.  311 


Art.  4.     Pleadings  and  Miscellaneous  Matters  of  Practice. 

are  proper  parties  to  the  action,  although  it  is  alleged  that  part 
only  of  the  heirs-at-law  have  been  in  possession  and  have  received 
the  rents  and  profits  of  the  whole  premises.  Va>i  Name  v.  Van 
Name,  23  How.  247.  But  only  such  parties  as  have  present  in- 
terests in  the  real  estate,  which  is  the  subject  of  an  action  to 
admeasure  dower,  are  necessary  parties  thereto.  O'Connor  v. 
Garrigan,  17  Week.  Dig.  302. 

Ejectment  for  dower  will  lie  against  a  tenant  who  had  an  estate 
less  than  a  freehold.  A  widow  entitled  to  dower  in  a  block  of 
city  lots  may  maintain  the  action  against  the  occupant  of  a  single 
floor  of  a  store  erected  on  one  lot,  which  floor  the  occupant  has 
hired  for  one  year.     Ellicott  v.  Mosicr,  7  N.  Y.  201. 

The  effect  of  §  1597  is  to  prevent  an  action  for  dower  being 
brought  except  against  a  person  who  comes  within  one  of  the 
categories  stated  in  the  section  either  as  occupant,  or  one  exercis- 
ing acts  of  ownership  or  claiming  title  to  the  premises.  Connolly  v. 
Newton,  85  Hun,  552. 

ARTICLE    IV. 

Pleadings    and    Miscellaneous    Matters   of    Practice. 

§§  1605,  1606,  1616,  1625. 

§  1605.  Collusive  recovery  not  to  prejudice  infant. 

Where  a  widow,  not  having  aright  to  dower,  recovers  dower  against  an  infant, 
by  the  default  or  collusion  of  his  guardian,  the  infant  shall  not  be  prejudiced 
thereby;  but  when  he  comes  of  full  age,  he  may  bring  an  action  of  ejectment 
against  the  widow,  to  recover  the  property  so  wrongfully  awarded  for  dower, 
with  damages  from  the  time  when  she  entered  into  possession,  although  that  is 
more  than  six  years  before  the  commencement  of  the  action. 

§  1606.  Complaint, 

The  complaint,  in  an  action  for  dower,  must  describe  the  property,  as  pre- 
scribed in  section  151 1  of  this  act;  and  must  set  forth  the  name  of  the  plaintiff's 
husband. 

§  1616.  Appeal  not  to  stay  execution,  if  undertaking  is  given. 

An  appeal  from  a  final  judgment,  awarding  to  the  plaintiff  possession  of  the 
part  admeasured  and  laid  off  to  her,  does  not  stay  the  execution  thereof,  unless 
the  court,  or  a  judge  thereof,  grants  an  order  directing  such  a  stay.  Such  an 
order  shall  not  be  granted,  if  an  undertaking  is  given  on  the  part  of  the  re- 
spondent, with  one  or  more  sureties,  approved  by  the  court,  or  a  judge  thereof, 
to  the  effect  that,  if  the  judgment  appealed  from  is  reversed  or  modified,  and 
restitution  is  awarded,  she  will  pay,  to  the  person  entitled  thereto,  the  value  of 


312  DOWER. 


Art.  4.     Pleadings  and  Miscellaneous  Matters  of  Practice. 

the  use  and  occupation  of  the  part  so  admeasured  and  laid  off  to  her,  or  of  the 
portion,  restitution  of  which  is  awarded,  during  the  time  she  holds  possession 
thereof,  by  virtue  of  the  judgment. 

§  1625.  Certain  provisions  of  article  second  made  applicable. 

The  provisions  of  article  second  of  this  title,  relating  to  a  sale  made  as  pre- 
scribed in  that  article,  and  to  the  distribution,  investment  and  care  of  the  pro- 
deeds,  apply,  as  far  as  they  are  applicable,  to  a  sale  made  as  prescribed  in  this 
article,  and  to  the  distribution  of  the  proceeds  of  a  sale,  as  prescribed  in  the 
last  section. 

By  subdivision  6,  of  §  791,  an  action  for  dower  is  preferred 
where  the  plaintiff  makes  proof  by  affidavit  to  the  satisfaction  of 
the  court  or  a  judge  thereof,  that  she  has  no  sufficient  means  of 
support  aside  from  the  estate  in  controversy.  Under  §  968,  an 
issue  of  fact  in  such  an  action  must  be  tried  by  a  jury.  Taxes, 
assessments  and  water  rates  are  deemed  expenses  of  sale  in  actions 
for  partition,  foreclosure  and  dower  and  must  be  paid  as  such. 
See  §  1680  as  to  right  of  reversioner  to  bring  action  after  tenant's 
default.  Judgment  for  dower  may  be  enforced  by  execution, 
§1240.  Rights  may  be  submitted  to  arbitration,  §  2365.  Regula- 
tions as  to  sale  of  dower  interest,  gross  sum  to  be  paid  in  lieu  of 
dower  in  partition  and  other  provisions  as  to  dower  in  that  action, 
§§  1567-1571-  Effect  of  conveyance  on  sale  of  real  estate  for  pay- 
ment of  debts  on  dower  interest,  §  2778.  Distribution  to  dower- 
ess  in  such  case,  and  investment  of  funds  set  apart  for  dower, 
§§  2793-2795.  Sections  1647  and  1649  regulate  the  action  to  com- 
pel determination  of  claims  to  real  property  when  brought  to  de- 
termine widow's  dower.  Sections  616  and  617  provide  for  the 
security  to  be  given  after  verdict  on  granting  injunction  to  stay 
proceedings  in  an  action  for  dower.  Effect  upon  dower  of  sale 
of  real  estate  of  incompetent  persons  and  proceedings  thereon, 
§§  2345-2364.  Release  under  that  title  has  same  effect  as  if  wife 
had  joined  in  conveyance  with  husband,  §  2358.  Where  in  pro- 
ceedings supplementaiy  to  execution  against  a  widow,  she  con- 
veyed dower  not  assigned  to  her  to  a  receiver,  who  complied  with 
section  2468,  held  the  receiver  could  maintain  the  action  to  have 
the  dower  admeasured.  Payfie  v.  Becker,  87  N.  Y.  153;  Sayles 
V.  Naylor,  5  St.  Rep.  816. 

As  to  action  by  owner  to  determine  widow's  claim  to  dower, 
see  sections  1647,  1648.  A  complaint  asking  to  have  dower  set 
off    under   the   Revised   Statutes  was  not   objectionable    on    the 


DOWER. 


313 


Art.  4.     Pleadings  and  Miscellaneous  Matters  of  Practice. 


ground  that  defendant  was  not  in  the  actual  possession  of  the 
lands,  or  that  six  months  had  not  elapsed  since  the  death  of  the 
husband.      TownsendY.  Townsend,  2  Sandf.  711. 

Where  the  complaint,  in  an  action  brought  to  have  dower  of 
defendant,  a  widow,  set  off,  admits  the  right  of  dower,  it  is  not 
necessary  to  allege  defendant  claims  dower ;  such  an  allegation  is 
only  necessary  where  plaintiff  denies  defendant's  right  and  seeks 
an  adjudication  barring  her.     Linden  v.  Doetsch,  40  Hun,  239. 

Where  in  the  complaint  the  description  of  the  premises  does  not 
conform  to  the  requirements  of  the  Code,  it  should  be  amended. 
Peart  Y.  Peart,  18  St.  Rep.  456. 

The  complaint  in  an  action  for  dower  in  which  it  is  alleged  that 
the  husband  of  the  doweress  had  executed  a  deed  of  the  premises 
to  one  of  the  defendants,  and  she  has  not  joined  in  the  convey- 
ance, but  which  fails  to  allege  that  the  defendant  was  either  an  actual 
occupant  or  a  person  exercising  acts  of  ownership,  or  one  claiming 
a  title  or  interest  in  the  premises  at  the  time  of  the  commence- 
ment of  the  action,  is  demurrable.  Connelly  v.  Newto7i,  85  Hun, 
552. 

Under  "Action  to  compel  the  determination  of  a  claim  to  real 
property  "  provision  is  made  for  an  action  against  a  woman  hav- 
ing a  right  of  dower  in  the  whole  or  a  part  of  property  to  compel 
the  determination  of  her  claim,  and  for  the  method  of  carrying 
on  the  action  and  proceedings  to  be  had  therein. 

Precedent  for  Complaint. 

SUPREME  COURT  — County  of  New  York. 


MARY  ANN  ROBINSON,  Plaintiff, 
agst. 

ROBERT  COVERS,  Individually,  and  as 
Sole  Executor  and  Trustee  under  the 
Last  Will  and  Testament  of  ANTHONY 
ROBINSON,  Deceased,  and  Others,  De- 
fendants. 


138  N.  Y.  425. 


The  amended  complaint  of  Mary  Ann  Robinson,  the  above-named 
plaintiff,  by  John  B.  Pine,  her  attorney,  respectfully  shows  to  this 
court: 

I.  That  heretofore,  to  wit:  On  or  about  the  19th  day  of  April,  1885, 
at  the  City  of  Brooklyn,  County  of  Kings,  and  State  of  New  York, 


314  DOWER. 


Art.  4.     Pleadings  and  Miscellaneous  Matters  of  Practice. 

the  plaintiff  intermarried  with  one  Anthony  Robinson,  the  testator 
above  named. 

2.  That  the  said  Anthony  Robinson  died  at  the  City  of  New  York 
on  the  30th  day  of  December,  1890,  leaving  a  last  will  and  testament 
and  codicil,  copies  of  which  are  hereto  annexed  and  made  a  part  of 
this  complaint,  which  said  last  will  and  testament  and  codicil  were 
admitted  to  probate  by  the  surrogate  of  the  City  and  County  of  New 
York  as  a  will  of  real  and  personal  property  on  or  about  the  24th 
day  of  January,  1891;  that  letters  testamentary  upon  the  estate  of 
said  Anthony  Robinson  were  by  said  surrogate  on  the  26th  day  of 
January,  1891,  granted  unto  Robert  Covers,  the  defendant  above 
named ;  that  said  defendant  Robert  Covers  alone  qualified  as  the 
executor  under  said  will,  as  the  plaintiff  is  informed  and  verily  be- 
lieves, and  alone  accepted  the  trust  created  thereby. 

3.  That  at  the  time  of  the  decease  as  aforesaid,  the  above-named 
Anthony  Robinson  was  seized  and  possessed  of  the  following  de- 
scribed real  estate  situate  in  the  city  and  county  of  New  York  and 
more  particularly  described  as  follows: 

(Insert  description.) 

being  the  same  premises  conveyed  to  the  said  Anthony  Robinson  by 
Benjamin  T.  Sherman,  Master  in  Chancery,  by  deed  dated  the  17th 
day  of  August,  1843,  and  recorded  on  said  day  in  Liber  437  of  Cons, 
page  457  in  the  office  of  the  Register  in  the  city  and  county  of 
New  York. 

4.  Upon  information  and  belief  that  upon  the  decease  of  said 
Anthony  Robinson,  the  premises  above  described  and  designated  as 
parcel  '  'A. ' '  which  said  premises  are  known  by  the  street  number  of  79 
Perry  street,  under  the  second  clause  of  said  last  will  and  testament, 
to  the  children  of  the  defendant  Robert  Covers,  to  wit:  to  the 
defendants  William  J.  Covers,  Maria  Covers,  Jane  Covers  and 
Esther  Covers,  subject  to  and  charged  with  the  dower  and  right  of 
dower  of  the  plaintiff  therein,  as  the  widow  of  said  Anthony  Robin- 
son, deceased. 

5.  Upon  information  and  belief  that  the  said  premises  described 
as  parcel  "  A."  are  rented  and  that  the  following  named  defendants 
have  or  claim  to  have  an  interest  therein  as  tenants,  to  wit:  the 
defendants  Anna  Stockman,  John  R.  Toom,  James  Camble,  Edward 
Cissie  and  John  Ray,  and  that  the  defendant  Robert  Covers,  indi- 
vidually or  as  executor  and  trustee  under  said  last  will  and  testa- 
ment, has  collected  and  is  now  collecting  the  rental  of  said  premises 
due  at  the  time  of  the  death  of  said  Anthony  Robinson  and  since 
accruing. 

Wherefore  the  plaintiff  demands  judgment: 

I.  That  as  the  widow  of  said  Anthony  Robinson,  deceased,  she 
is  entitled  to  dower  in  each  and  every  the  real  property  hereinbe- 
fore mentioned  and  described  and  that  the  respective  rights  and  in- 
terests of  the  several  parties  hereto  in  said  premises  may  be  deter- 
mined. 

II.  That  the  said  dower  of  the  plaintiff  in  the  several  lots  of  land 
and  premises  above  mentioned  and  described  may  be  set  off  and 


DOWER.  315 


Art.  4.     Pleadings  and  Miscellaneous  Matters  of  Practice. 

admeasured  to  the  plaintiff  by  the  referee   to  be  appointed  by  the 
■court  for  that  purpose  or  in  such  other  way  as  the  court  may  direct. 

III.  That  the  said  premises  or  so  much  thereof  as  may  be  neces- 
sary may  be  sold  according  to  law  and  the  proceeds  thereof  or  as 
much  thereof  as  may  be  necessary  to  secure  the  plaintiff's  right  of 
dower,  may  be  invested  under  the  direction  of  the  court  and  the  in- 
come arising  therefrom  paid  to  the  plaintiff  during  the  term  of  her 
natural  life,  or  that  plaintiff  have  leave  to  accept  a  gross  sum  in  lieu 
thereof,  and  that  the  surplus,  if  any,  be  distributed  among  the  seve- 
ral parties  entitled  thereto  in  proportion  to  their  respective  inter- 
ests, as  the  same  may  be  by  this  court  determined. 

IV.  That  the  defendant  Robert  Govers  account  for  the  rents  of 
said  premises  collected  by  him  in  his  individual  capacity  and  as  ex- 
ecutor and  trustee  as  aforesaid  and  pay  over  to  the  plaintiff  the 
proportion  of  said  rents  to  which  she  is  entitled. 

V.  That  the  plaintiff  have  such  other  and  further  relief  in  the 
premises  as  may  be  just  and  equitable,  together  with  her  costs  and 
disbursements  herein. 

Dated  New  York,  the  31st  day  of  March,  1891. 

JOHN    B.    PINE, 
Attorney  for  the  Plaintiff, 

Precedent  for  Complaint. 

NEW  YORK  SUPREME  COURT  — Ulster  County. 


HANNAH  EVERSON,  Plaintiff, 

agst.  )■    113  N.  Y.  293. 

ANDREW  McMULLEN,  Defendant. 

The  plaintiff,  appearing  in  this  action  by  G.  D.  B.  Hasbrouck, 
her  attorney,  respectfully  shows  to  the  court: 

First:  That  the  name  of  plaintiff's  husband  was  Morgan  Everson, 
late  of  the  town  of  Esopus,  County  of  Ulster,  deceased;  that  plain- 
tiff is  a  widow,  and  that  the  said  Morgan  Everson,  at  the  time  of  his 
death  and  during  many  years  previous  thereto,  was  seized  in  fee 
simple  and  possessed  of  the  following  described  premises: 

(Insert  description.) 

Second:  That  plaintiff  is  entitled  to  one  undivided  third  part 
thereof  for  her  life  as  her  reasonable  dower. 

Third:  That  the  plaintiff,  on  or  about  the  nth  day  of  June,  1885, 
demanded  her  dower  of  the  defendant,  in  the  aforesaid  premises, 
and  that  he  refused  and  still  refuses  to  assign  the  same  to  her. 

Fourth:  That  the  defendant  Andrew  McMullen,  was  at  the  time 
of  the  commencement  of  this  action  and  is  now  in  possession  and 
occupation  of  said  premises  and  claims  some  title  to  or  some  right 
in  the  possession  of  said  premises,  or  some  part  thereof,  which  right, 
if  any,  is  subject  to  the  plaintiff's  right  of  dower;  and  the  said  de- 
fendant wrongfully  and  unjustly  withholds  from  the  plaintiff  the 
possession  of  her  said  one-third  part  thereof  as  her  dower. 


3i6 


DOWER. 


Art.  4.     Pleadings  and  Miscellaneous  Matters  of  Practice. 

Wherefore  plaintiff  demands  judgment: 

ist.  That  she  recover  possession  of  one  undivided  third  part  of 
said  premises  for  her  life  against  the  defendant  Andrew   McMullen. 

2d.  That  the  said  dower  of  the  plaintiff  in  the  lands  and  premises 
hereinbefore  described  may  be  set  off  and  admeasured  to  the  plain- 
tiff by  commissioners  to  be  appointed  for  that  purpose,  or  in  such 
other  way  as  the  court  may  direct. 

3d.  That  said  widow  further  recover  damages  for  the  withholding 
of  her  dower  from  the  time  of  the  making  of  said  demand  to  the 
amount  of  one-third  of  the  annual  value  of  the  mesne  profits  of  said 
property,  with  the  interest  and  costs  of  this  action. 

G.   D.   B.   HASBROUCK, 

Plaintiff's  Attorney. 

In  ejectment  for  dower,  after  admeasurement,  defendant  could 
not  controvert  the  title  of  the  husband,  his  seizin,  plaintiff's  mar- 
riage and  the  death  of  the  husband.  Parks  v.  Hardey,  4  Bradf.  1 5. 
A  widow's  claim  for  dower  in  real  estate  is  not  subject  to  set-off  for 
moneys  due,  nor  for  receipt  of  rents  and  profits  of  the  whole  of 
the  lands  in  which  she  claims  dower.  Bogardus  v.  Parker,  7  How. 
303.     See  Elliott  v.  Gibbons,  30  Barb.  498. 

A  secret  conveyance  made  without  consideration  just  before 
marriage  is  void  as  against  wife's  claim  of  dower,  and  an  action  is 
maintainable  to  set  it  aside.  Pomeroy  v.  Pomeroy,  54  How.  228; 
Youngs  v.  Carter,  10  Hun,  194.  The  wife  need  not  wait  until  the 
death  of  the  husband.  Babcock  v.  Babcock,  53  How.  97.  Where 
one  induces  another  to  convey  property  to  him  under  a  promise 
to  pay  a  woman  with  whom  the  grantor  was  living  under  color  of 
a  void  marriage,  an  amount  equal  to  her  dower  right,  she  can  en- 
force such  promise.  Spiccr  v.  Spicer,  16  Abb.  (N.  S.)  1121. 
Where  the  wife  was  induced  to  execute  a  conveyance  on  ex- 
change of  the  title  to  the  land  to  be  received  by  the  husband, 
was  taken  in  a  third  party.  Held,  she  could  recover  as  damages 
the  present  value  of  her  inchoate  right  of  dower.  Douglas  v. 
Douglas,  II  Hun,  406.  As  to  when  covenant  by  a  woman  to 
release  her  right  of  dower  may  be  enforced  by  a  purchaser  from 
her  husband,  see  Carpenter  v.  Carpenter,  40  Hun,  263. 

The  order  of  reference  to  compute  damages  for  withholding 
dower,  which  provides  that  the  referee  may  determine  whether 
such  damages  were  taken  into  consideration  by  the  commissioners 
appointed  to  admeasure  dower,  authorizes  the  referee  to  receive 
evidence  as  to  the  action  and  finding  of  the  commissioners, 
although  they  made  no  formal  report  as  to  such  damage.     A  judg- 


DOWER.  317 


Art.  4.     Pleadings  and  Miscellaneous  Matters  of  Practice. 

ment  in  favor  of  plaintifT  in  such  an  action  may  be  determined  by- 
setting  off  against  the  costs  awarded  to  her  the  costs  of  a  refer- 
ence in  which  her  claim  for  damages  was  disallowed.  Swift  v. 
Swift,  88  Hun,  551,  43  Supp.  852,  68  St.  Rep.  749. 

In  an  action  for  dower  brought  by  a  widow  against  her  husband's 
grantee,  sufificiency  of  the  land  not  conveyed  by  the  husband  to 
satisfy  all  claims  of  dower  is  not  sufificient.  Richardson  v.  Harms, 
II  Misc.  254,  32  Supp.  808,  64  St.  Rep.  575. 

In  an  action  for  admeasurement  of  dower  where  issue  is  taken  as 
to  the  marriage  of  plaintiff,  the  defendant  is  entitled  to  a  bill  of 
particulars  showing  whether  such  marriage  was  ceremonial,  and  if 
so,  when,  where  and  by  whom  performed,  and  if  not  ceremonial, 
when  and  where  it  was  contracted.  Govin  v.  DeMiranda,  87  Hun, 
227,  33  Supp.  753,  67  St.  Rep.  426. 

An  offer  of  judgment  for  five  and  a  half  acres  of  the  land 
claimed  without  further  description,  is  too  indefinite.  Marble  v. 
Lezi'is,  53  Barb.  432. 

In  an  action  to  have  dower  set  off,  a  receiver  of  all  the  rents 
and  profits  may  be  appointed.     Eg-an  v.  Walsh,  11  J.  &  S.  402. 

Issue  of  fact  must  be  tried  by  a  jury  unless  waived.  §  968, 
Code;  Kinne  v.  Kinne,  2  T.  &  C.  393.  In  an  action  brought  for 
dower  defences  were  interposed  and  a  reference  to  try  the  issues 
ordered.  In  the  pleadings  there  was  no  issue  as  to  the  practica- 
bility of  a  specific  portion  of  the  premises  being  actually  ad- 
measured. At  the  trial  the  referee,  under  defendant's  objection, 
received  evidence  tending  to  show  the  fact  that  a  distinct  parcel 
of  the  property  could  not  be  admeasured  to  plaintiff  without 
material  injury  to  her  interests,  and  directed  a  sale.  Held,  that 
the  question  of  practicability  of  such  admeasurement  was  not  to 
be  tried  by  a  referee,  and  the  direction  for  sale  should  be  stricken 
out.  In  all  cases,  except,  perhaps,  where  the  trial  is  by  the  court, 
a  reference  must  be  made  to  ascertain  whether  actual  admeasure- 
ment can  be  had  after  a  decision  by  the  referee  as  to  the  rights  of 
the  parties  under  the  issues  and  before  the  judgment  declaring 
such  right  is  entered.  O' Dougherty  v.  Remington  Paper  Co.  42 
Hun,  192. 

In  an  action  to  foreclose  a  mortgage  in  which  the  wife  of  the 
mortgagor  did  not  join,  she  was  made  a  party,  but  tendered  no 
issue  as  to  her  right  of  dower ;  and  judgment  directed  a  sale  sub- 
ject to  her  right  of  dower;  held,  that  such  judgment  did  not  de- 


3l8  DOWER. 


Art.  4.     Pleadings  and  Miscellaneous  Matters  of  Practice. 

termine  her  right  of  dower  as  against  a  purchaser  at  the  sale  or  his 
grantee.  Nelson  v.Broivn,  144  N.  Y.  384,  39  N.  E.  Rep.  355,  63 
St.  Rep.  697,  afifiirming  66  Hun,  311,  49  St.  Rep.  562,  20  Supp. 
978. 

In  an  action  for  dower  a  general  verdict  for  or  against  the  plain- 
tiff should  be  rendered  ;  if  not  the  verdict  should  be  set  aside- 
Vadncy  v.  TJwnipson,  44  Hun,  i. 

In  an  action  by  a  widow  for  dower  there  cannot  be  a  judgment 
by  default  against  infant  defendants ;  she  must  prove  her  case. 
Dwycr  v.  Divjer,  13  Abb.  (N.  S).  269. 

Where,  in  an  action  of  ejectment  for  dower,  it  appeared  that 
one  Draper,  at  the  time  of  his  death  and  for  many  years  previous 
thereto,  had  been  her  husband  ;  that  at  the  time  of  his  decease  he 
was  and  for  many  years  had  been  seized  in  fee-simple  of  the 
premises  described  in  the  complaint ;  that  she  was  entitled  to  one- 
third  thereof  for  life  as  her  reasonable  dower,  and  that  the  defend- 
ant was  in  possession  of  the  land  and  wrongfully  withheld  the 
same  from  her,  held,  that  the  complaint  set  out  a  good  cause  of 
action.  It  was  not  necessary  to  aver  intestacy,  the  presumption 
is  in  favor  of  it,  and  any  matter  that  would  bar  dower  was  matter 
of  defence  to  be  interposed  by  answer.  Draper  v.  Draper,  1 1 
Hun,  616. 

Where  the  wife  was  a  party,  dower  was  set  aside  in  surplus  on 
foreclosure  free  from  costs.  Hatiley  v.  Bradford,  g  Paige,  200 ; 
CJiurcJi  V.  Cliurch,  3  Sandf.  Ch.  434.  When  the  widow  filed  a  bill 
for  dower,  and  asked  more  than  she  was  entitled  to,  not  having 
asked  an  assignment  of  dower,  neither  party  was  entitled  to  costs. 
Russell  V.  Austin,  i  Paige,  192;  Hazenv.  Thurber,  4  Johns.  Ch. 
604;  Hale  w.  James,  6  Johns.  Ch.  258.  Defendant  was  charged 
with  costs  because  he  refused  to  set  off  dower  and  to  account  for 
one-third  of  the  profits,  and  set  up  defence  which  was  overruled. 
Leonard  v.  Steele,  4  Barb.  20. 

Where  the  widow  accepts  a  gross  sum,  and  a  sale  is  ordered, 
costs  and  allowances  may  be  made  to  both  plaintiff  and  defend- 
ant. The  dower  interest  is  to  be  computed  on  the  balance.. 
Schierloh  v.  Sehierloh,  14  Hun,  572.  Since  the  adoption  of  the 
Code  of  Civil  Procedure,  the  plaintiff,  in  an  action  brought  for 
dower,  if  successful,  is  entitled  to  costs  of  course  under  subdi- 
vision I,  of  §  3228  of  the  Code,  as  it  is  an  action  to  recover  an 
interest  in  real  property,  and   is  triable  by  a  jury.      Evcrson  v. 


DOWER.  319 


Art.  5.     Interlocutory  Judgment  for  Admeasurement  of  Dower. 

McMiilleji,  45  Hun,  578;  distinguishing  as  decided  before  passage 
of  the  last  nine  chapters  Aiknian  v.  Harscll,  31  Hun,  635  ;  which 
held  that  there  were  no  statutory  provisions  regulating  costs  in  an 
action  for  admeasurement  of  dower  under  the  Code  of  Civil  Pro- 
cedure, and  consequently  costs  in  such  an  action  are  in  the  discre- 
tion of  the  court.  Costs  in  an  action  for  dower  go  to  the  success^ 
ful  party  of  course.     Jones  v.  Emery,  i  Civ.  Pro.  R.  338. 

ARTICLE  V. 

Interlocutory  Judgment  for  Admeasurement  of  Dower: 

§  1607. 

§  1607.  Interlocutory  judgment  for  admeasurement. 

If  the  defendant  makes  default  in  appearing  or  pleading;  or  if  the  right  of  the 
plaintiff  to  dower  is  not  disputed  by  the  answer;  or  if  it  appears,  by  the  verdict, 
report,  or  decision  upon  a  trial,  that  the  plaintiff  is  entitled  to  dower  in  the  real 
property  described  in  the  complaint,  an  interlocutory  judgment  must  be  ren- 
dered; which,  except  as  otherwise  prescribed  in  this  article,  must  direct  that  the 
plaintiff's  dower  in  the  property,  particularly  describing  it,  be  admeasured  by  a 
referee,  designated  in  the  judgment,  or  by  three  reputable  and  disinterested 
freeholders,  designated  therein,  as  commissioners  for  that  purpose. 

Under  §  1607,  an  action  to  admeasure  dower  will  not  be  stayed 
where  the  right  of  the  plaintiff  to  dower  is  not  disputed,  to  enable 
a  person  who  has  come  in  and  bought  from  one  of  the  heirs,  td 
have  the  dower  admeasured  in  a  partition  suit  subsequently 
brought.     Rice  v.  Thompson,  42  St.  Rep.  424. 

Precedent  for  Interlocutory  Judgment. 

NEW  YORK  SUPREME  COURT— Ulster  County. 

HANNAH  EVERSON, Plaintiff, 

agst.  )■    113  N.  Y.  293. 

ANDREW  Mcmullen,  defendant. 


The  above-entitled  action  having  been  duly  brought  to  trial  at  a 
Circuit  Court  held  in  and  for  the  county  of  Ulster  at  the  court 
house  in  the  city  of  Kingston,  commencing  November,  1885,  and 
this  action  having  been  reached  for  the  trial  on  the  loth  day  of 
November,  1885,  and  the  action  having  been  by  a  stipulation  duly 
made  in  open  court  waiving  a  jury  trial,  tried  before  the  court  with- 
out a  jury,  and  said  court  having  made  and  filed  its  decision. 

Now,   therefore,  in  accordance  with  said  decision,  it  is  adjudged: 
First:   That   the   plaintiff  is   entitled    to   dower  in   the   equity  of 
redemption  of  the  premises  described  in  the  complaint  herein. 


320 


DOWER. 


Art.  5.     Interlocutory  Judgment  for  Admeasurement  of  Dower. 

Second:  That  the  plaintiff's  interest  as  widow  be  and  the  same 
hereby  is  charged  with  its  just  proportion  of  the  mortgage  indebted- 
ness as  created  by  the  mortgage  from  Morgan  Everson  and  wife  to 
the  Rondout  Savings  Bank,  the  mortgage  from  Charles  M.  Preston 
and  wife  to  the  Rondout  Savings  Bank,  and  the  mortgage  from 
Andrew  McMullen  to  the  Rondout  Savings  Bank  be  and  the  same  is 
hereby  recognized  and  allowed  in  ascertaining  the  amount. 

Third:  That  a  referee  be  appointed  by  this  court  to  admeasure 
plaintiff's  dower  and  ascertain  with  what  and  how  it  should  be 
charged  and  determine  its  value,  etc.,  in  accordance  with  the  statute 
in  such  case  made  and  provided,  and  report  to  the  court  with  all 
convenient  speed,   that  the  court  may  take  final  action  therein. 

Fourth:  And  that  either  party  have  liberty  to  apply  to  this  court 
for  the  further  order  or  judgment  of  the  court,  as  they  might  advise. 

JACOB    D.    WURTS, 

Clerk. 


Precedent  for  Notice  of  Motion  for  Appointment  of  Referee 

SUPREME  COURT  — County  of  New  York. 


MARY  ANN  ROBINSON,  Plaintiff, 

agst. 

ROBERT  COVERS,  Individually  and  as 
Executor  and  Trustee,  and  Others,  De- 
fendants. 


138  N.  Y.  425. 


Please  take  notice  that  upon  the  verdict  rendered  upon  the  trial 
of  the  above-entitled  action,  at  a  circuit  of  this  court,  held  at  the 
county  court  house  in  the  city  of  New  York  on  the  22d  day  of 
October,  1891,  before  Hon.  Edward  Patterson,  Justice,  and  a  jury, 
finding  the  plaintiff  entitled  to  dower  in  the  premises  described  in 
the  amended  complaint  herein,  and  upon  all  the  proceedings  had  and 
papers  filed  herein,  and  upon  the  affidavit  of  regularity  of  John  B. 
Pine,  hereto  annexed,  dated  the  30th  day  of  October,  1891,  and 
upon  the  abstract  of  title  and  official  searches  to  be  produced 
upon  the  hearing  of  this  motion,  a  motion  will  be  made  at  a  special 
term  of  this  court  to  be  held  at  the  chambers  thereof  at  the  county 
court  house  in  the  city  of  New  York,  on  the  9th  day  of  November, 
1891,  at  half-past  ten  o'clock  in  the  forenoon  or  as  soon  thereafter 
as  counsel  can  be  heard,  for  an  order  adjudging  that  the  plaintiff  is 
entitled  to  an  interlocutory  decree  herein  awarding  her  dower  in  the 
real  property  aforesaid,  and  directing  a  reference  to  ascertain 
whether  a  distinct  parcel  of  said  real  property  can  be  admeasured 
and  laid  off  to  the  plaintiff  as  tenant  in  dower  without  material  injury 
to  the  interests  of  the  parties,  and  further  directing  that  if  it  shall 
appear  from  the  report  of  such  referee  that  a  distinct  parcel  cannot 
be  so  admeasured  and  laid  off,  an  interlocutory  decree  be  entered 
upon  the  filing  of  such  report,  directing  a  sale  of  said  premises  by  a 


DOWEK.  321 


Art.  5.      Interlocutory  Judgment  for  Admeasurement  of  Dower. 

referee  named  therein,  and  further  directing  that  a  reference  as  to 
whether  any  person  not  a  party  has  a  lien  upon  the  said  real  property 
or  any  part  thereof  be  dispensed  with  and  for  such  other  and  further 
relief  as  may  be  just  and  equitable  in  the  premises. 
Dated,  New  York,  30th  day  of  October,  1891. 

JOHN  B.  PINE, 

Plaintiff's  Attorney. 

Precedent  for  Order  of  Reference. 

At  a  Special  Term  of  the  Supreme  Court  held  at  the  Chambers 
thereof  in  the  county  court  house  in  the  city  of  New  York,  on 
the  27th  day  of  November,  1891. 

Present  —  Hon.  Edward  Patterson,  Justice. 


MARY  ANN  ROBINSON,  Plaintiff, 

agst. 

ROBERT    GOVERS,  Individually   and  as  \   138  N.  Y.  425. 
Sole  Executor  and  Trustee  Under  the 
Last  Will  and  Testament  of  ANTHONY 
ROBINSON,  Deceased,  and  Others. 

This  being  an  action  for  dower  and  the  same  having  come  on  for 
trial  at  circuit  on  the  22d  day  of  October,  1891,  and  a  verdict  having 
been  rendered  declaring  the  plaintiff  to  be  entitled  to  dower  in  the 
real  property  described  in  the  amended  complaint,  and  the  plaintiff 
having  before  the  commencement  of  the  trial,  filed  with  the  clerk 
consent  to  accept  gross  sum  in  full  satisfaction  and  discharge  of  her 
right  of  dower  in  the  said  property,  such  consent  being  in  writing 
and  acknowledged  in  like  manner  as  a  deed  to  be  recorded,  and  a 
copy  thereof  having  been  served  upon  each  adverse  party,  who  has 
appeared  in  the  action,  and  the  defendants  William  J.  Covers, 
Maria  Covers,  Jane  Covers  and  Esther  Covers  having,  before  the 
rendering  of  an  interlocutory  judgment  herein,  applied  to  the  court 
upon  notice,  for  an  order  granting  them  leave  to  pay  the  gross  sum 
to  which  the  plaintiff  may  be  entitled  in  satisfaction  and  discharge 
of  her  dower  in  the  property  described  in  the  complaint  and  therein 
designated  as  parcel  "A."  known  as  No.  79  Perry  street,  and  the  de- 
fendant Robert  Covers,  as  trustee  under  the  last  will  and  testament 
of  Anthony  Robinson,  deceased,  having  in  like  manner  applied  for 
an  order  granting  him  leave  to  pay  the  gross  sum  to  which  the 
plaintiff  may  be  entitled  in  satisfaction  and  discharge  of  her  dower 
in  the  property  described  in  the  said  amended  complaint  as  parcel 
"B.,"  known  as  81  Perry  street,  and  the  said  application  having 
come  on  to  be  heard, 

Now,  on  reading  and  filing  notices  of  the  said  several  applications, 
and  after  hearing  Mr.  Shaw,  of  counsel  for  the  defendants  William  J. 
Covers,  Maria  Covers,  Jane  Covers  and  Esther  Covers;  Mr.  Nathan, 
of  counsel  for  the  said  Robert  Covers  as  trustee  aforesaid;    Mr. 

[Special  Actions  —  21.] 


322  DOWER. 


Art.  6.     Commissioners,  their  Powers,  Duties  and  Report. 

Pine,  of  counsel  for  the  plaintiff,   and  Mr.   Carpenter,  guardian  ad 
litem  for  the  infant  defendant  Robert  G.  Robertson,  it  is 

Ordered,  That  it  be  and  that  it  hereby  is  referred  to  Thomas  F. 
Donnelly,  Esq.,  counsellor-at-law,  as  sole  referee  to  ascertain  the 
value  of  plaintiff's  right  of  dower  in  the  said  several  parcels  respec- 
tively, and  to  report  to  this  court  the  respective  amounts  so  ascer- 
tained by  him  with  all  convenient  speed. 

All  questions  in  respect  to  costs  and  in  respect  to  the  relief  to 
which  the  respective  parties  may  be  entitled  are  reserved  until  the 
coming  in  of  the  report  of  the  said  referee,  and  at  which  time  any 
of  the  parties  may  make  such  motion  in  respect  thereto  as  he  or  she 
may  be  advised.  WM.   J.   M'KENNA, 

Clerk. 

ARTICLE  VI. 

Commissioners,    their    Powers,    Duties    and    Report. 
§§  1608,  1609,  1610,  1611,  1612. 

§  1608.  Oath  of  commissioners,  etc.;  removal ;  filling  vacancy. 

Each  of  the  commissioners,  or  the  referee,  as  the  case  requires,  must,  before 
entering  upon  the  execution  of  his  duties,  subscribe  and  take  an  oath,  before  an 
officer  specified  in  section  842  of  this  act,  to  the  effect  that  he  will  faithfully, 
honestly  and  impartially  discharge  the  trust  reposed  in  him.  The  oath  must  be 
filed  with  the  clerk,  before  a  commissioner  or  a  referee  enters  upon  the  execu- 
tion of  his  duties.  The  court  may,  at  any  time,  remove  the  referee,  or  either  of 
the  commissioners.  If  either  of  them  dies,  resigns,  or  neglects  or  refuses  to 
serve,  or  is  removed,  the  court  may,  from  time  to  time,  appoint  another  person 
in  his  place. 

§  1609.  Dower,  how  admeasured. 

The  referee  or  the  commissioners  must  execute  their  duties  in  the  following 
manner: 

1.  They  must,  if  it  is  practicable,  and,  in  their  opinion,  for  the  best  interests 
of  all  the  parties  concerned,  admeasure  and  lay  off,  as  speedily  as  possible,  as 
the  dower  of  the  plaintiff,  a  distinct  parcel,  constituting  the  one-third  part  of 
the  real  property  of  which  dower  is  to  be  admeasured,  designating  the  part  so 
laid  off  by  posts,  stones,  or  other  permanent  monuments. 

2.  In  making  the  admeasurement,  they  must  take  into  consideration  any  per- 
manent improvements,  made  upon  the  real  property,  after  the  death  of  the 
plaintiff's  husband,  or  after  the  alienation  thereof  by  him;  and,  if  practicable, 
those  improvements  must  be  awarded  within  the  part  not  laid  off  to  the  plaintiff; 
or  if  it  is  not  practicable  so  to  award  them,  a  deduction  must  be  made  from  the 
part  laid  off  to  the  plaintiff,  proportionate  to  the  benefit  which  she  will  derive 
from  so  much  of  those  improvements,  as  is  included  in  the  part  laid  off  to  her. 

3.  If  it  is  not  practicable,  or  if,  in  the  opinion  of  the  referee  or  commissioners 
it  is  not  for  the  best  interests  of  all  the  parties  concerned,  to  admeasure  and  lay 
off  to  the  plaintiff  a  distinct  parcel  of  the  property,  as  prescribed  in  the  fore- 
going subdivisions  of  this  section,  they  must  report  that  fact  to  the  court. 

4.  They  may  employ  a  surveyor,  with  the  necessary  assistants,  to  aid  in  the 
admeasurement. 


DOWER.  323 


Art.  6.     Commissioners,  their  Powers,  Duties  and  Report. 

§  1610.  Report  thereupon. 

All  the  commissioners  must  meet  together  in  the  performance  of  any  of  their 
duties;  but  the  acts  of  a  majority  so  met  are  valid.  The  referee,  or  the  com- 
missioners, or  a  majority  of  them,  must  make  a  full  report  of  their  proceedings, 
specifying  therein  the  manner  in  which  they  have  discharged  their  trust,  with 
the  items  of  their  charges  and  a  particular  description  of  the  portion  admeasured 
and  laid  off  to  the  plaintiff;  or,  if  they  report  that  it  is  not  practicable,  or,  in 
their  opinion,  it  is  not  for  the  best  interests  of  all  the  parties  concerned,  to  ad- 
measure and  lay  off  a  distinct  parcel  of  the  property  of  which  dower  is  to  be 
admeasured,  they  must  state  the  reasons  for  that  opinion  and  all  the  facts  re- 
lating thereto.  The  report  must  be  acknowledged  or  proved  and  certified,  in 
like  manner  as  a  deed  to  be  recorded,  and  must  be  filed  in  the  office  of  the  clerk. 

§  1611.  Setting  aside  report. 

Upon  the  application  of  any  party  to  the  action,  and  upon  good  cause  shown, 
the  court  may  set  aside  the  report,  and,  if  necessary,  may  appoint  new  commis- 
sioners or  a  new  referee,  who  must  proceed,  as  prescribed  in  this  title,  with 
respect  to  those  first  appointed. 

§  1612.  Fees  and  expenses. 

The  fees  and  expenses  of  the  commissioners  or  of  the  referee,  including  the 
expense  of  a  survey,  when  it  is  made,  must  be  taxed  under  the  direction  of  the 
court;  and  the  amount  thereof  must  be  paid  by  the  plaintiff  and  allowed  to  her 
upon  the  taxation  of  her  costs. 

Commissioners  are  entitled  to  five  dollars  per  day,  surveyors 
to  same  compensation,  surveyors'  assistants  to  two  dollars  per 
day.     §  3299, 

Where  a  widow,  having  recovered  her  dower  in  ejectment,  ap- 
plies to  have  her  dower  admeasured,  notice  to  all  the  owners  of  the 
freehold  is  not  essential ;  notice  to  the  attorney  for  the  parties  is 
sufficient.  Stezvart  v.  Smith,  i  Keyes,  59.  It  is  customary  and 
usual  for  commissioners  to  give  notice  of  their  meetings  to  parties 
interested,  but  the  want  of  a  formal  notice  is  not  ground  for  refus- 
ing to  confirm  their  report,  where  it  appears  that  the  party  objecting 
knew  of  their  meetings,  and  that  no  injustice  was  done  him  by 
the  decision.  Smith  \.  Smith,  6 'La.ns.  313.  Where  three  com- 
missioners were  appointed,  the  tenant  not  attending  before  the 
court  at  the  time  noticed,  but  on  the  same  day  one  of  them  was 
changed  by  reason  of  his  health  ;  held,  that  the  proceedings  might 
be  regarded  as  continuous  and  regular  without  additional  notice. 
White  V.  Story,  2  Hill,  543,  Though  dower  must  in  general  be 
assigned  by  metes  and  bounds,  yet  where  the  subject-matter  is  of 
such  a  nature  that  no  decision  can  be  made  which  will  give  the 
parties  the  enjoyment  of  their  respective  shares  in  severalty,  it 


324 


DOWER. 


Art.  6.     Commissioners,  their  Powers,  Duties  and  Report. 


may  be  assigned  so  as  to  give  the  widow  one-third  of  the  profits 
or  the  parties  may  have  an  alternate  occupation  of  the  whole. 
White  V.Story,  2  Hill,  543;  Coatcsv.  Cheever,  i  Cow.  460. 

No  deduction  can  be  made  in  consequence  of  any  conveyance 
made  by  the  husband  to  the  wife  during  coverture.  Hyde  v. 
Hyde,  4  Wend.  630.  Where  dower  was  to  be  assigned  in  a  build- 
ing used  as  a  dwelling-house  and  store,  the  commissioners  set  it  off 
by  running  lines  through  the  premises,  regardless  of  rooms,  etc., 
so  as  to  render  a  part  of  the  building  useless,  Jield,  that  the  report 
could  be  vacated  on  motion  of  the  owners.  Stewart  v.  Smith,  i 
Keyes,  59.  As  to  how  dower  is  to  be  computed  on  a  surplus  paid 
into  surrogate's  court,  arising  on  a  foreclosure,  see  Taylor  v.  Bent- 
ley,  3  Redf.  34.  A  widow  is  entitled  to  the  crops  growing,  at  the 
time  of  her  husband's  death,  on  the  lands  assigned  to  her  for 
dower.  Clark  v.  Batter f,  i  T.  &  C.  58;  see  Kain  v.  Fisher,  6  N. 
Y.  597. 

Although  a  release  by  a  wife  of  her  inchoate  right  of  dower  is  a 
good  consideration  for  her  husband's  paying  her  a  part  of  the 
purchase  money,  yet,  as  against  his  creditors,  he  being  insolvent, 
she  will  only  be  entitled  to  retain  the  actual  value  of  the  inchoate 
right  of  dower,  computed  by  ascertaining  the  value,  for  her  life, 
in  one-third  of  the  proceeds  of  the  premises,  and  deducting  there- 
from the  value  of  a  like  annuity  for  the  joint  lives  of  herself  and 
her  husband.  Doty  v.  Baker,  ii  Hun,  222.  To  bar  the  widow's 
right  to  dower,  where  rent  has  been  assigned  with  her  assent 
and  accepted  by  her,  it  must  appear  that  the  rent  will  endure  for 
her  Hfe.  Ellicott  v.  Hosier,  7  N.  Y.  201.  If  part  of  a  home  be 
assigned  to  a  widow  for  dower,  the  tenant  cannot  object.  White 
v.  Story,  2  Hill,  543.  Where  the  husband  has  conveyed  part  of 
the  land,  with  warranty,  the  widow  is  bound  to  accept  an  assign- 
ment of  her  whole  dower  out  of  that  of  which  he  died  seized. 
Wood  V.  Keyes,  6  Paige,  478.  Where  the  husband's  title  has  been 
divested  by  bankruptcy  proceedings,  the  widow's  dower  is  to  be 
computed  as  of  the  time  of  the  assignment  in  bankruptcy. 
Ray  nor  v.  Raynor,  21  Hun,  36. 

A  widow  is  entitled  to  have  set  off  to  her,  by  metes  and  bounds, 
the  one-third  part  of  lands  of  which  her  husband  died  seized  as 
tenant  in  common,  to  be  held  by  her  as  tenant  in  common  with 
the  other  owner.  Smith  v.  Smith,  6  Lans.  313.  If  one-third  can- 
not be  set  off    by  metes  and   bounds,  then   one-third  of  the  rents 


DOWER.  32  i 


Art.  6.     Commissioners,  their  Powers,  Duties  and  Report. 


and  profits  regulated,  by  the  value  at  the  time  of  the  husband's 
alienation,  should  be  set  apart.  Van  G elder  v.  Post,  2  Edw.  577. 
A  widow  who  elects  to  take  a  gross  sum  from  the  surplus,  in  lieu 
of  dower,  is  entitled  to  the  same  clear  of  all  costs  or  commissions. 
Campbell  V.  Erving,  43  How.  258.  The  widow  is  entitled  to  one- 
third  of  the  land,  according  to  its  value  at  the  time  of  alienation, 
and  is  not  entitled  to  be  allowed  for  any  increase  in  value  or  any 
improvements.  Brown  v.  Brozun,  4  Robt.  688 ;  Bartlett  v.  Miis- 
liner,  28  Hun,  235  ;  Marble  v.  Lewis,  36  How,  337,  and  cases  cited. 
See  Art.  VH.  See  §  1600,  and  cases  cited  on  this  point.  The 
question  of  improvements  is  to  be  determined  by  the  commis- 
sioners.    Marble  v.  Lewis,  53  Barb.  432. 

Dower  is  due  of  mines  worked  during  coverture,  not  of  those 
unopened  at  the  husband's  death.  If  the  land  assigned  for  dower 
contain  an  open  mine,  the  doweress  may  work  it.  Coates  v. 
Cheever,  i  Cow.  460.  Upon  the  hearing  before  the  referee,  ap- 
pointed by  an  interlocutory  judgment  in  an  action  brought  for 
dower,  it  appeared  that  the  real  estate  consisted  of  four  distinct 
parcels.  Held,  that  the  plaintiff  was  not  entitled  to  have  her 
dower  set  off  in  each  separate  and  distinct  parcel,  when  to  do  so 
would  unjustly  affect  the  right  of  the  parties.  Express  au- 
thority is  conferred  by  §  1609,  to  set  off  a  distinct  parcel,  consti- 
tuting one-third  of  the  real  property  of  which  dower  is  to  be 
admeasured.      Price  v.  Price,  41  Hun,  486. 

Under  the  code  one  of  several  distinct  parcels  of  land  in  which 
a  widow  is  entitled  to  dower,  constituting  one-third  of  the  real 
property  of  which  dower  is  to  be  admeasured,  may  be  set  off  in  sat- 
isfaction of  her  entire  claim  for  dower  in  the  several  parcels  of 
property.      Price  v.  Price,  ii  Civ.  Pro.  R.  359. 

A  widow  is  entitled  to  have  her  dower  assigned  her,  clear  of 
all  arrears  of  taxes  and  assessments  which  should  be  paid  out  of 
her  husband's  personal  estate.  Van  Derbcckv.  City  of  Rochester, 
46  Hun,  87. 

It  is  not  proper  in  the  admeasurement  of  dower  to  impose 
charges  upon  lands  not  set  off  for  the  exclusive  use  and  benefit  of 
the  doweress,  during  her  life,  nor  is  it  proper  to  set  off  dower  in 
a  burial  lot.  Price  v.  Price,  54  Hun,  349;  s.  C.  27  St.  Rep.  no. 
The  precedents  which  follow  can  be  readily  adapted  to  report 
of  commissioners. 


326  DOWER. 


Art.  6.     Commissioners,  their  Powers,  Duties  and  Report. 

Precedent  for  Report  of  Referee. 

SUPREME  COURT  — City  and  County  of  New  York. 


MARY  ANN  ROBINSON,  Plaintiff, 

agst. 

ROBERT  COVERS,  Individually,  and  as 
Sole  Executor  and  Trustee  under  the 
Last  Will  and  Testament  of  ANTHONY 
ROBINSON,  Deceased,  Defendants. 


^   138  N.  Y.  425. 


To  the  Supreme  Court  of  the  State  of  Neiv  York : 

I,  the  undersigned  Thomas  F.  Donnelly,  to  whom,  under  an  order 
of  this  court,  bearing  date  the  27th  day  of  November,  1891,  made 
herein,  it  was  referred  as  sole  referee  to  ascertain  the  value  of  the 
plaintiff's  right  of  dower  in  the  several  parcels  of  property  men- 
tioned in  said  order,  and  therein  described  as  Nos.  79  and  81  Perry 
street,  respectively,  and  to  report  to  this  court  the  respective 
amounts  so  ascertained,  with  all  convenient  speed,  do  hereby 
report : 

1.  That  before  proceeding  with  the  hearing  of  the  matter  so 
referred  to  me,  1  took  oath  prescribed  by  the  Code  of  Civil  Pro- 
cedure. 

2.  That  I  was  attended  on  such  reference  by  John  B.  Pine,  Esq., 
attorney  for  plaintiff  (recite  other  appearances),  and  thereupon  heard 
the  proofs  of  the  respective  parties,  and  from  the  evidence  adduced 
on  said  reference  and  from  the  proofs  before  me,  I  do  find  and 
report  as  follows: 

That  the  plaintiff  is  70  years  old;  that  the  value  of  the  fee  of  No. 
79  Perry  street,  New  York  city,  mentioned  in  said  order  of  refer- 
ence, is  $15,000;  that  the  value  of  the  fee  of  No.  81  Perry  street. 
New  York  city,  mentioned  in  said  order  of  reference,  is  $15,000; 
that  the  value  of  the  plaintiff's  right  of  dower  in  the  premises  known 
and  mentioned  as  79  Perry  street  in  said  order  of  reference,  is 
$1,505.75;  that  the  value  of  the  plaintiff's  right  of  dower  in  the 
premises  known  and  mentioned  as  No.  81  Perry  street  in  said  order 
of  reference,  is  $1,505.75. 

All  of  which,  together  with  the  testimony  and  proofs  adduced 
before  me,  is  respectfully  submitted. 

The  opinion  of  the  undersigned  is  annexed  to  this  report. 

Dated,  New  York,  January  21st,  1892. 

THOMAS  F.   DONNELLY, 

Referee. 


DOWER.  327 


Art.  6.     Commissioners,  their  Powers,  Duties  and  Report. 


Precedent  for  Referee's  Report. 

SUPREME  COURT. 


HANNAH  EVERSON,  Plaintiff, 

agst. 

ANDREW  Mcmullen,  defendant. 


-   113  N.  Y.  293. 


To  the  Supreme  Court  of  the  State  of  Neiv  York  : 

I,  Alvah  S.  Newcomb,  the  referee  appointed  by  an  order  of  this 
court  made  and  entered  on  the  5th  day  of  February,  1887,  to  ad- 
measure the  dower  of  Hannah  Everson,  widow  of  Morgan  Everson, 
deceased,  in  the  property  of  which  said  Morgan  Everson  died  seized, 
situated  in  the  county  of  Ulster  and  described  as  follows:  (Insert 
description)  do  respectfully  report: 

I.  Before  entering  upon  my  duties  as  such  referee,  I  took  and 
filed  the  oath  prescribed  by  statute  in  such  case  made  and  provided 
to  faithfully,  honestly  and  impartially  execute  the  trust  reposed  in 
me  as  such  referee  as  aforesaid. 

II.  On  the  i8th  day  of  March,  1887,  I  attended  at  the  premises 
hereinbefore  described,  and  Hannah  Everson,  by  her  attorney,  G.  D. 
B.  Hasbrouck,  Esq.,  and  Andrew  McMullen,  by  his  attorney,  Charles 
M.  Preston,  Esq.,  appeared  before  me  at  the  time  and  place  afore- 
said and  pointed  out  to  me  the  boundaries  of  said  property  and  the 
permanent  improvements  made  thereupon  after  the  death  of  said 
plaintiff's  husband,  and  the  sale  of  said  property  by  the  executor  of 
her  said  husband. 

III.  And  I  further  report  that  in  my  opinion  it  is  not  for  the  best 
interests  of  all  the  parties  concerned,  to  admeasure  and  lay  off  to 
said  Hannah  Everson  a  distinct  part  of  said  property,  and  the  fol- 
lowing are  the  reasons  for  such  opinion: 

ist.  The  property  has  a  water  front  of  150  feet  now  divided  into 
three  unequal  parts.  The  westerly  part  is  a  slip  for  the  use  of  ves- 
sels, in  the  rear  of  which  stands  a  large  open  shed  or  shop.  The 
next  or  middle  part  is  an  open  pier  or  dock  extending  from  the 
channel  bank  of  the  Rondout  Creek  to  the  lane  at  the  rear  of  this 
lot,  and  the  easterly  part  is  a  ship  railway  for  drawing  vessels  up  and 
out  of  the  water.  All  of  which  parts  are  used  by  and  are  indispen- 
sable to  the  said  Andrew  McMullen  in  his  business  as  ship-builder. 
All  of  which  improvements,  except  such  shed  or  shop,  have  been  made 
by  the  said  Andrew  McMullen. 

2d.  If  an  admeasurement  should  be  made  and  one-third  part  of 
said  property  be  set  apart  for  said  Hannah  Everson,  it  could  not  be 
done  without  making  the  remaining  part  practically  useless  to  the 
said  Andrew  McMullen  for  his  business  as  ship-builder. 

3d.  If  an  admeasurement  should  be  made  and  one-third  part  of 
said  property  be  set  apart  for  the  said  Hannah  Everson,  the  rental 
value  of  the  proportion  set  apart  for  her  would  not  be  equal  to  one- 
third  of  the  rental  value  of  the  whole  property;  for  her  said  one- 


328  DOWER. 

Art.  7.     What  Damages  may  be  Recovered  in  the  Action. 

third  part  would  be  too  small  for  ship-building  purposes  or  for  any 
other  purpose  for  which  such  water  fronts  can  be  used. 

4th.  And  I  further  report  that  under  a  stipulation  of  the  respec- 
tive attorneys  for  the  parties  herein,  I  attended  at  the  office  of 
Preston  &  Chipp,  attorneys  for  defendant  herein,  on  the  23d  day  of 
March,  1887,  and  took  testimony  of  certain  witnesses  to  ascertain 
the  rental  value  of  said  property,  which  said  stipulation  and  testi- 
mony signed  by  the  witnesses,  is  hereto  annexed. 

5th.  And  I  further  report  that  after  hearing  the  testimony  of  the 
witnesses  as  aforesaid  to  ascertain  the  rental  value  of  said  property 
and  after  hearing  G.  D.  B.  Hasbrouck,  Esq.,  of  counsel  for  said 
Hannah  Everson,  and  Charles  M.  Preston  of  counsel,  for  said  Andrew 
McMullen,  and  after  due  consideration  of  all  the  evidence  before 
me  in  this  matter,  I  find  that  the  rental  value  of  said  property 
(independent  of  the  improvements  made  thereupon  since  the  sale  of 
said  property  by  the  executor  of  plaintiff's  husband)  was  the  sum  of 
$300  for  the  year  1885,  and  that  the  rental  value  of  said  property 
since  1885,  has  been  and  still  is  the  sum  of  $300  a  year. 

6th.   The  items  of  my  charges  are: 
For  attending  at  said  property  to  see  if  admeasurement  could 

be  made $10 

For  services  as  referee  to  ascertain  rental  value  of  said  property 

or  one  day  taking  testimony 10 

One  day  preparing  report 10 

$30 

In  witness  whereof  I  have  hereunto  set  my  hand  this  first  day  of 
April,  A.  D.  1887.  ALVAH  S.   NEWCOMB. 


ARTICLE  VII. 

What  Damages  may  be  Recovered  in  the  Action. 
§§  1600,  1 60 1,  1602,  1603. 

§  1600.  Damages  may  be  recovered  ;  how  estimated. 

Where  a  widow  recovers,  in  an  action  therefor,  dower  in  property,  of  which 
her  husband  died  seized,  she  may  also  recover,  in  the  same  action,  damages  for 
withholding  her  dower,  to  the  amount  of  one-third  of  the  annual  value  of  the 
mesne  profits  of  the  property,  with  interest;  to  be  computed,  where  the  action 
is  against  the  heir,  from  her  husband's  death,  or,  where  it  is  against  any  other 
person,  from  the  time  when  she  demanded  her  dower  of  the  defendant;  and  in 
each  case,  to  the  time  of  the  trial,  or  application  for  judgment,  as  the  case  may 
be;  but  not  exceeding  six  years  in  the  whole.  The  damages  shall  not  include 
anything  for  the  use  of  permanent  improvements,  made  after  the  death  of  the 
husband. 

g  1601.  Id. ;  in  action  against  alienee  of  husband. 

Where  a  widow  recovers  dower,  in  a  case  not  specified  in  the  last  section,  she 
may  also  recover,  in  the  same  action,  damages  for  withholding  her  dower,  to  be 


DOWER.  329 


Art.  7.     What  Damages  may  be  Recovered  in  the  Action. 

computed  from  the  commencement  of  the  action;  but  they  shall  not  include 
anything  for  the  use  of  permanent  improvements,  made  since  the  property  was 
aliened  by  her  husband.  In  all  other  respects,  the  same  must  be  computed  as 
prescribed  in  the  last  section. 

§  1602.  Id.;  where  several  pjircels,  etc. 

The  last  two  sections  do  not  authorize  the  recovery,  against  a  defendant  who 
is  joined  with  others,  of  damages  for  withholding  dower,  in  any  portion  of  the 
property  not  occupied  or  claimed  by  him. 

§  1603.   Id.;  against  heirs,  etc.;  aliening  land. 

Where  a  widow  recovers  dower  in  real  property  aliened  by  the  heir  of  her 
husband,  she  may  recover,  in  a  separate  action  against  him,  her  damages  for 
withholding  her  dower,  from  the  time  of  the  death  of  her  husband  to  the  time 
of  the  alienation,  not  exceeding  six  years  in  the  whole.  The  sum  recovered 
from  him  must  be  deducted  from  the  sum  which  she  would  otherwise  be  en- 
titled to  recover  from  the  grantee;  and  any  sum  recovered  as  damages  from  the 
grantee,  must  be  deducted  from  the  sum  which  she  would  otherwise  be  entitled 
to  recover  from  the  heir. 

The  widow  is  entitled  to  the  value  of  the  mesne  profits  arising 
on  the  use  of  the  undivided  third  of  the  premises  of  which  the 
husband  died  seized,  from  the  death  of  her  husband,  exclusive  of 
the  improvements  since  made  thereon.  Hazett  v.  T/mrber,  4 
Johns,  Ch.  604.  The  widow  is  entitled  to  damages  from  the 
death  of  her  husband,  provided  he  died  seized ;  she  can  recover 
them  only  against  the  tenant,  and  he  is  liable  for  them  for  the 
whole  time.  Hitchcock  v.  Harrington,  6  Johns.  290.  Such  dam- 
ages were  not  recoverable  at  common  law.  Enbrcc  v.  Ellis,  2 
Johns.  119.  Where  the  husband  aliens  in  his  lifetime,  a  judg- 
ment that  the  widow  recover  one-third  of  the  land  is  erroneous; 
commissioners  must  be  appointed  to  pass  upon  the  question  of 
improvements.  Marble  v.  Lewis,  36  How.  337.  The  value  at  the 
time  of  the  alienation  by  the  husband  may  be  ascertained  by  a 
jury  on  the  trial  of  an  issue.  Dolfv.  Bassett,  15  Johns.  21.  A 
sale  by  the  heir  will  not  prevent  the  widow  from  recovering  dam- 
ages from  the  death  of  the  ancestor,  nor  will  a  delay  in  bringing 
the  action  prejudice  her  claim.  Hitchcock  v.  Harr ington,  6  ]o\\ns. 
290.  That  the  widow  may  recover  damages.  Van  Name  v.  Van 
Name,  23  How.  247.  The  widow's  dower  is  to  be  taken  accord- 
ing to  the  value  of  the  land  at  the  time  of  the  alienation.  Hum- 
phrey V.  PJiinney,  2  Johns.  483. 

If  the  husband  mortgages  the  land,  but  continues  in  possession, 
and  afterwards  releases  the  equity  of  redemption   to  the  mort- 


330  DOWER. 


Art.  7.     What  Damages  may  be  Recovered  in  the  Action. 

gagee,  the  date  of  the  release  is  deemed  the  period  of  ahenation 
at  which  the  value  is  to  be  estimated.  Hale  v.  Jaines,  6  Johns. 
Ch.  258.  The  widow  is  not  entitled  to  recover  against  the  pur- 
chaser arrears  which  occurred  previous  to  his  purchase;  they  are 
to  be  ascertained  where  there  is  an  outstanding  mortgage  by- 
computing  the  amount  due  on  the  mortgage  at  the  time  of  the 
purchase,  and  deducting  one-third  of  the  interest  on  that  amount 
from  one-third  of  the  rents  and  profits  of  the  property,  over  and 
above  the  necessary  repairs,  taxes,  etc.  Russell  v.  Austin,  i 
Paige,  192;  Hale  v.  James,  6  Johns.  Ch.  258.  The  meaning  of 
the  statute  is,  that  the  widow  shall  not  recover  for  increased  value 
of  the  land.  Dorchester  v.  Coventry,  11  Johns.  510;  Shaw  v. 
White,  13  Johns.  179;  Coates  v.  Cheever,  i  Cow.  460 ;  Walker  v. 
Schuyler,  10  Wend.  481.  It  is  by  statute  alone  that  a  widow 
may  recover  for  arrears  of  dower,  either  at  law  or  in  equity,  and 
damages  for  withholding  can  only  be  estimated  for  six  years  prior 
to  the  judgment.  Kyle  v.  Kyle,  67  N.  Y.  400.  The  rule  in 
Kyle  V.  Kyle,  that  a  widow  can  only  recover  rents  and  profits  as 
incident  to  dower,  held,  not  to  prevent  a  widow,  who  had  assented 
to  a  conveyance  by  mistake,  from  having  an  accounting  as  to 
proceeds  of  sales.  It  is  error  to  allow  a  widow  to  have  an  account- 
ing against  a  grantee  for  rents  and  profits,  received  prior  to  the 
husband's  death,  and  prior  to  her  demanding  dower  from  such 
grantee.  WittJiatis  v.  ScJiack,  38  Hun,  590.  See  S.  C.  reversed 
on  another  point,  105  N.  Y.  332. 

The  rule  that  dower  is  to  be  computed  upon  the  value  of  the 
property  as  it  was  at  the  date  of  the  succession  by  the  heir,  is 
applied  in  Sidzvay  v.  Sidway,  23  St.  Rep.  305,  4  N.  Y.  Supp. 
920,  52  Hun,  222. 

Under  the  provisions  of  the  Code,  §§  1600  and  1603,  a  grantee 
of  property  subject  to  the  dower  interest,  becomes  liable  only 
after  a  demand,  after  which  his  liability  continues  in  existence 
six  years  in  all,  until  judgment  admeasuring  the  dower  is  entered 
although  prior  to  that  time  he  may  have  conveyed  the  land,  while 
an  heir-at-law  is  liable  from  the  date  of  the  death  of  the  husband. 
Price  V.  Price,  54  Hun,  349.     See  cases  under  Art.  VI. 


DOWER.  331 


Art.  8.     Agreement  to  Accept  Gross  Sum  and  Proceedings  Thereon. 

ARTICLE  VIII. 

Agreement    to    Accept    Gross    Sum    and    Proceedings 
Thereon.     §§  161 7  to  1624.     Rule  70. 

§  1617.  Plaintiff  may  consent  to  receive  a  gross  sum. 

In  an  action  for  dower,  the  plaintiff  may,  at  any  time  before  an  interlocutory 
judgment  is  rendered,  by  reason  of  the  defendant's  default  in  appearing  or 
pleading,  or,  where  an  issue  of  fact  is  joined,  at  any  time  before  the  commence- 
ment of  the  trial,  file  with  the  clerk,  a  consent  to  accept  a  gross  sum,  in  full 
satisfaction  and  discharge  of  her  right  of  dower  in  the  real  property  described 
in  the  complaint.  Such  a  consent  must  be  in  writing,  and  acknowledged  or 
proved,  and  certified,  in  like  manner  as  a  deed  to  be  recorded.  A  copy  thereof, 
with  notice  of  the  filing,  must  be  served  upon  each  adverse  party  who  has  ap- 
peared, or  who  appears  after  the  filing. 

§  1618.  Defendant  may  consent  to  pay  it ;  proceedings  thereupon. 

At  any  time  after  a  consent  is  filed,  as  prescribed  in  the  last  section,  and 
before  an  interlocutory  judgment  is  rendered,  any  defendant  may  apply  to  the 
court,  upon  notice,  for  an  order  granting  him  leave  to  pay  such  a  gross  sum. 
Thereupon  the  court  may,  in  its  discretion,  and  upon  such  terms  as  justice  re- 
quires, ascertain  the  value  of  the  plaintiff's  right  of  dower  in  the  property,  by  a 
reference  or  otherwise,  and  make  an  order,  directing  payment,  by  the  applicant, 
of  the  sum  so  ascertained,  within  a  time  fixed  by  the  order,  not  exceeding  sixty 
days  after  service  of  a  copy  thereof;  and  directing  the  execution  by  theplaintiff 
of  a  release  of  her  right  of  dower,  upon  receipt  of  the  money.  Obedience  to 
the  order  may  be  enforced,  either  by  punishment  for  contempt,  or  by  striking 
out  the  pleading  of  the  offending  party,  and  rendering  judgment  against  him 
or  her  or  in  both  modes. 

§  1619.  Interlocutory  judgment  for  sale. 

Where  the  plaintiff's  consent  has  been  filed,  as  prescribed  in  the  last  section 
but  one,  and  she  is  entitled  to  an  interlocutory  judgment  in  the  action,  the  court 
must,  upon  the  application  of  either  party,  ascertain,  by  reference  or  otherwise, 
whether  a  distinct  parcel  of  the  property  can  be  admeasured  and  laid  off  to  the 
plaintiff,  as  tenant  in  dower,  without  material  injury  to  the  interests  of  the 
parties.  If  it  appears  to  the  court,  that  a  distinct  parcel  cannot  be  so  admeas- 
ured and  laid  off,  the  interlocutory  judgment  must,  except  in  the  case  specified 
in  the  next  section,  direct  that  the  property  be  sold  by  the  sheriff,  or  by  a  referee 
designated  therein;  and  that,  upon  the  confirmation  of  the  sale,  each  party  to 
the  action,  and  every  person  deriving  title  from,  through,  or  under  a  party, 
after  the  filing  of  the  judgment-roll,  or  of  a  notice  of  the  pendency  of  the  action, 
as  prescribed  in  article  ninth  of  this  title,  be  barred  of  and  from  any  right,  title, 
or  interest  in  or  to  the  property  sold. 

t^  1620.   Id.;   directing  a  part  to  be  laid  oflf. 

In  a  case  specified  in  section  1617  of  this  act,  where  the  property,  or  a  part 
thereof,  consists  of  one  or  more  vacant  or  unimproved  lots,  the  plaintiff's  con- 
sent may  contain  a  stipulation  to  take  a  distinct  parcel,  out  of  those  lots,  in  lieu 
of  a  gross  sum.      In  that  case,  the  interlocutory  judgment,  instead  of  directing 


332 


DOWER. 


Art.  8.     Agreement  to  Accept  Gross  Sum  and  Proceedings  Thereon. 

a  sale,  may  direct,  if  it  appears  to  be  just  so  to  do,  that  commissioners  be  ap- 
pointed to  admeasure  and  lay  ofif  to  the  plaintiff  a  distinct  parcel,  out  of  the 
vacant  or  unimproved  lots;  and,  if  there  is  any  other  property,  that  it  be  sold, 
and  a  gross  sum  be  paid  to  her  out  of  the  proceeds  thereof,  as  prescribed  in  the 
next  three  sections.  The  plaintiff's  title  to  each  distinct  parcel,  admeasured  and 
laid  off  to  her,  as  prescribed  in  this  section,  is  that  of  an  estate  of  inheritance  in 
fee  simple.  In  admeasuring  and  laying  off  the  same,  the  commissioners  must 
consider  quantity  and  quality  relatively,  according  to  the  value  of  the  plaintiff's 
right  of  dower  in  the  vacant  or  unimproved  lots,  out  of  which  the  admeasure- 
ment is  to  be  made;  which  must  be  ascertained,  in  proportion  to  the  value  of 
those  lots,  as  prescribed,  in  the  next  three  sections,  for  fixing  a  gross  sum  to  be 
paid  to  her  out  of  the  proceeds  of  a  sale. 

§  1621.  liiens  to  be  ascertained. 

Before  an  interlocutory  judgment  is  rendered  for  the  sale  of  the  property,  the 
court  must  direct  a  reference  to  ascertain  whether  any  person,  not  a  party,  has 
a  lien  upon  the  property,  or  any  part  thereof.  Except  as  otherwise  expressly 
prescribed  in  this  article,  the  proceedings  upon  and  subsequent  to  the  reference 
must  be  the  same,  as  prescribed  in  article  second  of  this  title,  where  a  reference 
is  made  as  prescribed  in  section  1561  of  this  act. 

See  Dcnnerlcin  v.  Dennerlcin,  12  St.  Rep.  640  as  to  effect   of 
omitting  notice. 

§  1622.  Id.;  payment  of;  or  sale  subject  to. 

Where  the  interlocutory  judgment  directs  a  sale,  if  the  right  of  dower  of  the 
plaintiff  is  inferior  to  any  other  lien  upon  the  property,  the  judgment  may,  in 
the  discretion  of  the  court,  direct  that  the  property  be  sold  either  subject  to  the 
lien,  or  discharged  from  the  lien;  and,  in  the  latter  case,  that  the  officer  making 
the  sale  pay  the  amount  of  the  lien,  out  of  the  proceeds  of  the  sale. 

§  1623.  Repcrt  of  sale. 

Immediately  after  completing  the  sale,  and  executing  the  proper  conveyance 
to  the  purchaser,  the  officer  making  the  sale  must  make  and  file  with  the  clerk  a 
report  thereof,  showing  the  name  of  the  purchaser,  and  the  purchase-price  paid 
by  him,  or,  if  the  property  was  sold  in  parcels,  the  name  of  each  purchaser,  and 
the  price  and  a  description  of  the  parcel  sold  to  him;  the  sums  which  the  officer 
has  paid  out  of  the  proceeds  of  the  sale,  pursuant  to  the  interlocutory  judgment; 
the  purpose  for  which  each  payment  was  made;  the  amount  and  items  of  his 
fees  and  expenses;  and  the  net  amount  of  the  proceeds,  after  deducting  the 
payments. 

§  1624.  Pinal  judgment  thereon. 

Upon  confirming  the  sale,  the  court  must  ascertain,  by  a  reference  or  other- 
wise, the  rights  and  interests  of  each  of  the  parties  in  and  to  the  proceeds  of  the 
sale,  and  also  what  gross  sum  of  money  is  equal  to  the  value  of  the  plaintiff's 
dower  in  the  net  proceeds  of  the  sale,  calculated  upon  the  principles  applicable 
to  life  annuities.  The  court  must  thereupon  render  final  judgment,  confirming 
the  sale,  and  directing  that  the  gross  sum  so  ascertained  be  paid  to  the  plaintiff, 
in  full  satisfaction  of  her  right  of  dower;  and  that  the  remainder  of  the  proceeds 
of  the  sale  be  distributed  among  the  persons  entitled  thereto. 


DOWER.  333 


Art.  8.     Agreement  to  Accept  Gross  Sum  and  Proceedings  Thereon. 


Rule  70.  Gross  sum  in  payment  of  life  estate ;  how  ascertained. 

Whenever  a  party,  as  a  tenant  for  life,  or  by  the  curtesy,  or  in  dower,  is  en- 
titled to  the  annual  interest  or  income  of  any  sum  paid  into  court  and  invested 
in  permanent  securities,  such  party  shall  be  charged  with  the  expense  of  invest- 
ing such  sum,  and  of  receiving  and  paying  over  the  interest  or  income  thereof; 
but  if  such  party  is  willing,  and  consents  to  accept  a  gross  sum  in  lieu  of  such 
annual  interest  or  income  for  life,  the  same  shall  be  estimated  according  to  the 
then  value  of  an  annuity  of  five  per  cent  on  the  principal  sum,  during  the  prob- 
able life  of  such  person,  according  to  the  Portsmouth  or  Northampton  tables. 

When  a  party  elect.s  to  accept  a  gross  sum  in  lieu  of  dower  or  an 
annual  income  for  life,  upon  a  fund  in  court,  it  is  customary,  on 
petition  of  the  party  entitled  to  the  same,  to  appoint  a  referee  to 
compute  the  amount  due,  but  this  is  for  the  convenience  of  and 
discretionary  with  the  court,  and  when  the  court  refuses  to 
appoint  a  referee,  it  is  presumed  it  deemed  it  a  proper  case  to  take 
the  proofs  itself  and  that  the  matter  is  still  before  the  court  for  that 
purpose.  Livingston  v.  Livingston,  8  Week.  Dig.  328.  See  Rule 
70,  supra,  and  Northampton  tables  under  §  1569. 

A  widow  may  dispose  of  her  dower  right  before  it  is  admeas- 
ured, and  where  land  is  subject  to  a  dower  right  of  the  widow, 
the  purchaser  may  elect  to  take  title  subject  to  the  dower  right, 
in  which  case  he  is  entitled  to  an  abatement  from  the  contract 
price  equal  to  the  gross  cash  value  of  the  dower  right,  and  where 
the  widow  was  a  party  to  the  sale  without  any  reservation  of  her 
dower  right,  she  was  held  to  have  consented  to  look  to  the  pur- 
chase money  as  a  substitute  for  the  land  and  her  dower  right 
therein.     Bostwick  v.  Beach,  103  N,  Y.  414. 

Precedent  for  Release  of  Dower. 

SUPREME  COURT  — County  of  New  York. 


MARY  ANN  ROBINSON 
agst. 
ROBERT    GOVERS    Individually  and  as  \   138  N.  Y.  425. 
Executor    of    ANTHONY    ROBINSON, 
Deceased,  and  Others. 

The  undersigned,  Mary  Ann  Robinson,  the  plaintiff  in  the  above- 
entitled  action,  hereby  consents  to  accept  a  gross  sum  in  full  satis- 
faction of  her  right  of  dower  in  the  real  property  described  in  the 
amended  complaint  herein  as  parcel  "A,"  the  amount  to  be  ascer- 
tained pursuant  to  law. 

Dated,  New  York,  i6th  day  of  April,  1891. 

MARY  ANN  ROBINSON. 


334 


DOWER. 


Art.  9.     Final  Judgment  and  its  Effect. 


ARTICLE  IX. 
Final  Judgment  and  its  Effect.    §§  161 3,  1614,  1615. 

§  1613.  Final  judgment. 

Upon  the  report  being  confirmed  by  the  court,  final  judgment  must  be  ren- 
dered. If  the  referee  or  commissioners  have  admeasured  and  laid  off  to  the 
plaintiff  a  distinct  parcel  of  the  property,  the  judgment  must  award  to  her, 
during  her  natural  life,  the  possession  of  that  parcel,  describing  it,  subject  to 
the  payment  of  all  taxes,  assessments,  and  other  charges,  accruing  thereupon 
after  she  takes  possession.  If  the  referee  or  the  commissioners  report,  that  it  is 
not  practicable,  or  that,  in  his  or  their  opinion,  it  is  not  for  the  best  interests  of 
all  the  parties  concerned,  so  to  admeasure  and  lay  off  a  distinct  parcel  of  the 
property,  the  final  judgment  must  direct,  that  a  sum,  fixed  by  the  court,  and 
specified  therein,  equal  to  one-third  of  the  rental  value  of  the  real  property,  as 
ascertained  by  a  reference  or  otherwise,  be  paid  to  the  plaintiff,  annually  or 
oftener,  as  directed  in  the  judgment,  during  her  natural  life,  for  her  dower  in 
the  property;  and  that  the  sum  so  to  be  paid,  be  and  remain  a  charge  upon  the 
property,  during  her  natural  life.  The  final  judgment  may  also  award  damages 
for  the  withholding  of  dower. 

§  1614.  Plaintiff  may  recover  sum  awarded;  court  may  modify  judgment. 

The  plaintiff  may,  from  time  to  time,  maintain  an  action  against  the  owner, 
or  a  person  who  was  the  owner  of  the  property,  to  recover  any  instalment  of 
the  sum,  so  awarded  to  her  for  her  dower,  which  became  due  during  his  owner- 
ship, and  remains  unpaid.  Or,  if  an  instalment  remains  due  and  unpaid,  she 
may  maintain  an  action  to  procure  a  sale  of  the  property,  and  enforce  the  pay- 
ment of  the  instalments,  due  and  to  become  due,  out  of  the  proceeds  of  the  sale. 
Such  an  action  must  be  conducted,  as  if  the  charge  upon  the  real  property  was 
a  mortgage  to  the  same  effect.  If,  at  any  time,  it  is  made  to  appear  to  the  court, 
that  the  rental  value  of  the  real  property  has  materially  increased  or  diminished, 
the  court  may,  by  an  order,  to  be  made  upon  notice  to  all  the  persons  interested, 
modify  the  final  judgment  by  increasing  or  diminishing  the  sum  to  be  paid  to 
the  plaintiff. 

§  1615.  Junior  incumbrancers;  not  a£Fected  by  admeasurement. 

Where  a  portion  of  the  property  is  admeasured  and  laid  off  to  plaintiff  as  her 
dower,  a  lien,  which  is  inferior  to  the  plaintiff's  right  of  dower,  attaches,  during 
the  life  of  the  plaintiff,  to  the  residue,  or  to  the  portion  or  share  of  the  residue 
which  was  subject  to  it,  as  if  the  portion  laid  off  to  the  plaintiff  had  not  been  a 
part  of  the  property. 

Where  a  decree  was  entered,  adjudging  plaintiff  to  be  entitled 
to  dower,  and  fixing  the  sum  to  which  she  was  entitled  as  one- 
third  of  the  yearly  income  of  the  property  and  after  two  pay- 
ments, a  motion  was  made  for  an  order  that  the  doweress  receive 
one-third  of  the  net  rents,  held  that  as  the  court  had,  as  required 
by  §  1613,  fixed  a  sum  equal  to  one-third  of  the  rental  value  of 


DOWER.  335 


Art.  9.     Final  Judgment  and  its  Effect. 


the  property,  and  specified  the  same  as  the  dower,  the  court  had 
no  power  to  alter  such  final  judgment.  Mclntyre  v,  Clarke  43 
Hun,  352. 

Judgment  to  be  entered  in  this  action  is  that  provided  by 
§  161 3,  which  authorizes  judgment  awarding  the  widow  during  her 
natural  life,  actual  possession  of  a  certain  portion  of  the  property, 
or  that  she  be  paid  a  certain  sum  annually  during  her  life  and 
that  damages  may  be  awarded  her  for  withholding  dower.  Where 
she  does  not  take  any  proceedings  in  her  lifetime  to  assert  her 
claim,  the  right  to  have  dower  admeasured  abates  with  her  death 
and  neither  her  personal  representatives  nor  those  of  her  assignee 
can  thereafter  enforce  it  in  any  form.  Howell  v.  Newman,  59 
Hun,  538,  37  St.  Rep.  296. 

Precedent  for  Final  Judgment. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  county  court  house,  in  the  city  of  Kingston,  on  the 
9th  day  of  April,  A.  D.  1887. 

Present  —  Hon.  Alton  B.  Parker,  Justice. 


HANNAH  EVERSON,  Plaintiff, 

agst. 

ANDREW  McMULLEN,  Defendant. 


-113  N.  Y.  263. 


The  above-entitled  action  having  been  heretofore  duly  brought  to 
trial  at  a  Circuit  Court,  held  in  and  for  the  county  of  Ulster  at  the 
court  house  in  the  city  of  Kingston,  commencing  November,  16, 
1885,  and  trial  by  jury  having  been  waived  in  open  court  and  trial 
having  been  had  and  the  decision  of  the  court  made  and  filed  and 
an  interlocutory  judgment  having  been  appealed  from  and  having 
been  modified  by  order  of  the  General  Term  of  this  court  entered 
on  the  second  day  of  February,  1887,  in  the  office  of  the  clerk  of  the 
county  of  Ulster,  and  the  court  having  made  an  order  pursuant  to 
said  interlocutory  judgment,  so  modified  as  aforesaid,  and  entered  in 
said  clerk's  office  on  the  7th  day  of  February,  1887,  appointing  a 
referee  to  admeasure  plaintiff's  dower  in  the  premises  described  in 
the  complaint,  and  who,  pursuant  to  stipulation,  took  testimony  to 
ascertain  the  rental  value  of  said  premises,  and  the  report  of  said 
referee  having  been  duly  filed  in  the  office  of  the  clerk  of  the  county 
of  Ulster  of  the  5th  day  of  April,  1887,  and  Messrs.  Preston  & 
Chipp^  of  counsel  for  defendant,  being  now  here  in  open  court  and 
waiving  notice  of  confirmation  of  said  report  and  application  for 
this  judgment,  it  is  adjudged  and  decreed  that  the  said   report  of 


336 


DOWER. 


Art.  9.     Final  Judgment  and  its  Effect. 


Alvah  S.  Newcomb  be  and  the  same  is  hereby  in  all  respects  con- 
firmed save  section  five  thereof  in  which  the  referee  finds  the  rental 
value  of  said  property; 

And  now  after  hearing  G.  D.  B.  Hasbrouck,  Esq.,  plaintiff's 
attorney,  in  favor  of  this  final  judgment,  and  Mr.  Chipp,  of  counsel 
for  the  defendant,  opposed,  and  after  reading  the  papers  aforesaid 
now  on  file,  it  is  adjudged  and  decreed  that  the  plaintiff  is  entitled 
to  dower  in  the  premises  described  in  the  complaint  as  follows: 

(Insert  description.) 

And  after  reading  and  filing  the  evidence  taken  by  said  referee 
and  his  oath  and  the  stipulation  of  counsel  to  said  evidence,  annexed, 
in  relation  to  the  rental  value  of  said  premises  described  in  the  com- 
plaint, and  after  hearing  G.  D.  B.  Hasbrouck,  plaintiff's  attorney, 
and  Preston  &  Chipp,  Esqs.,  of  counsel  for  defendant,  concerning 
the  same,  I  hereby  fix  and  determine  the  rental  value  of  said 
premises  for  the  year  1885  and  since  and  now,  at  and  to  be  the  sum 
of  $225  per  year  independent  of  taxes  or  other  charges,  they  hav- 
ing been  taken  into  consideration  in  fixing  the  same; 

And  it  is  hereby  adjudged  and  decreed  that  the  defendant  pay  the 
plaintiff  the  sum  of  $75  per  year  on  the  first  day  of  January  of  each 
year  during  her  life,  as  and  for  her  dower  in  the  premises,  or  her 
attorney  for  her; 

And  on  reading  the  pleadings  herein  and  the  evidence  taken  by 
the  referee  as  aforesaid,  and  proof  of  the  taxes  and  other  charges 
against  the  said  property  being  now  here  adduced  before  me,  and 
the  plaintiff  and  defendant,  by  their  respective  attorneys,  being  now 
here  in  open  court,  I  hereby  fix  and  determine  one-third  of  the 
annual  value  of  the  mesne  profits  to  be  $75  per  year; 

And  it  is  hereby  adjudged  and  decreed  that  the  plaintiff  Hannah 
Everson  do  recover  of  the  defendant  Andrew  McMuUen  the  sum  of 
$135 -75  damages  for  the  withholding  plaintiff's  dower  from  the  nth 
day  of  June,  1885,  to  date  hereof; 

And  it  is  hereby  adjudged  and  decreed  that  plaintiff  recover  $137, 
her  costs  awarded  her  by  said  General  Term  order,  to  be  taxed  by 
the  clerk,  and  the  disbursements  of  this  action,  and  the  costs  as  of 
course  and  not  awarded  by  the  discretion  of  the  court  in  the  sum 
of  $147.33  to  be  hereafter  taxed  by  the  clerk. 

A.  B.  PARKER, 

J.   S.   C. 


CHAPTER    IV. 
FORECLOSURE.* 

PAGE. 

Article  I.   Nature  of  the  action  and  courts  having  jurisdiction.  337 

2.  Parties  plaintiff  and  defendant.     Sec.  1627 342 

3.  Complaint  and  notice  of  pendency  of  action.     Sees. 

1629,1631 356 

4.  Answer  and  defences 000 359 

5.  Matters  of  practice.     Sees.  1628,  1630 373 

6.  Reference  to  compute  amount  due.     Rule  60,  79  . .  403 

7.  Judgment,  the  character  and  extent  of  relief.    Sees. 

1626,  1632.     Rule  61 411 

8.  Sale  and  manner  in  which  it  is  conducted.    Rule  63.  430 

9.  Judgment  for  deficiency 43° 

10.  Proceedings  when  mortgage   debt   is    not  all  due. 

Sees.  1634,  1635,1636,  1637 441 

11.  Surplus  proceedings.     Sec.  1633.     Rule  64 445 

12.  Precedents  for   foreclosure  of  mortgage  given  to 

secure  bonds 407 

Sections  of   the  Code   of   Procedure  and  Where     Found   in 
sKc.  THIS  Chapter:  art.  page. 

1626.  Final  judgment;  what  to  contain 7  4" 

1627.  Person  liable  for  mortgage  debt  may  be  made  defendant,  etc.. .  2  345 

1628.  Other  actions  for  mortgage  debt,  when  prohibited 5  39° 

1629.  Complaint  to  state  whether  such  action  brought 3  35^ 

1630.  If  judgment  rendered  therein,  execution  must  be  returned 5  370 

1631.  Notice  of  pendency  of  action  to  be  filed 3  359 

1632.  Effect  of  conveyance  upon  sale 7  42 1 

1633.  Disposition  of  surplus n  445 

1634.  When  complaint  to  be  dismissed  on  payment  of  sum  due  ......  10  441 

1635.  Payment  after  judgment;  when  proceedings  to  be  stayed 10  441 

1636.  When  part  only  of  the  property  to  be  sold 10  44i 

1637.  When  the  whole  property  may  be  sold 10  44i 

ARTICLE  L 
Nature  of  the  Action  and  Courts  Having  Jurisdiction. 

SiTB.  I.  Character  of  the  Action. 

2.  Strict  foreclosure. 

3.  Courts  having  jurisdiction  and  place  of  trial. 


*  The  subject  of  foreclosure  is  very  exhaustively  treated  in  Wiltsie  on  Law 
and  Practice  of  Foreclosure,  also  in  Hilliard,  Jones,  Pingrey  and  Thomas  on 
Mortgages. 

[Special  Actions  —  22.]  [337] 


338  FORECLOSURE. 


Art.  I.     Nature  of  the  Action  and  Courts  Having  Jurisdiction. 

Sub.   I.  Character  of  the  Action. 

The  object  of  the  action  of  foreclosure  is  to  enable  the  mort- 
gagee to  have  the  mortgaged  premises  sold  in  order  to  obtain  his 
money,  interest  and  expenses,  and  that  the  mortgagor  and  all 
persons  claiming  under  him  be  barred  of  all  equity  of  redemption 
in  the  mortgaged  premises,  the  purchaser  taking  a  clear  title  to 
the  land  sold.     Gerard's  Titles  to  Real  Estate,  4th  ed.  671. 

Hilliard  on  Mortgages  defines  foreclosure  to  be  the  process  by 
which  a  mortgagee  acquires  or  transfers  to  a  purchaser  an 
absolute  title  to  the  property  on  which  he  had  previously  had  a 
mere  lien  by  way  of  mortgage. 

Two  objects  are  sought  to  be  accomplished  in  foreclosures  under 
the  practice  in  this  State,  on  the  sale  of  the  mortgaged  property 
by  decree,  one  to  give  perfect  title  and  apply  the  moneys  arising 
from  the  sale  upon  the  mortgage  debt,  the  other  in  case  of  de- 
ficiency to  obtain  a  personal  judgment  against  the  parties  liable 
therefor.     Wiltsie  on  Mortgage  Foreclosure,  5. 

It  is  said  in  Selkirk  v.  Wood,  9  Civ.  Pro.  R.  141,  that  an  action 
of  foreclosure  is  a  proceeding  in  rem,  while  the  contrary  is  held 
in  Osborne  v.  Randall,  7  Civ.  Pro.  R.  323. 

There  are  three  methods  of  foreclosure  which  are  or  have  been 
recognized  in  this  State  : 

First.  Strict  foreclosure  or  foreclosure  without  sale  of  the  prop- 
erty, the  purpose  of  which  is  to  perfect  in  the  mortgagee  an  abso- 
lute title  instead  of  by  resort  to  a  sale.  This  procedure  was  origi- 
nated in  England,  upon  the  theory  that  the  mortgagee  acquired 
title  to  property  subject  only  to  an  equity  of  redemption,  and  the 
action  was  used  simply  to  perfect  that  title  in  the  mortgagee  and 
deprive  the  owner  of  the  equity  of  any  right  in  the  property. 
Whether  or  not  that  method  now  exists  in  this  State  will  be 
considered  further. 

The  effect  of  a  strict  foreclosure  is  to  cut  off  and  extinguish  the 
equity  in  the  mortgagor  and  leaves  the  title  conveyed  by  the  mort- 
gagor absolute  in  the  mortgagee.  Packer  v.  Rochester^  etc.  R.  R. 
Co.  17  N.  Y.  283. 

Second.  Statutory  foreclosure  or  foreclosure  by  advertisement, 
a  remedy  under  which  sale  may  be  had  by  proceedings  provided 
for  by  statute.  This  method  is  provided  for  under  §§  2387  to 
2409  of  the  Code,  and  is  treated  in  Fiero  on  Special  Proceedings. 


FORECLOSURE.  339 


Art.  I.     Nature  of  the  Action  and  Courts  Having  Jurisdiction. 

As  the  statutory  proceedings  must  be  strictly  followed  and  the 
courts  have  insisted  that  the  papers  must  show  every  matter  con- 
nected with  jurisdiction,  it  is  not  ordinarily  used  except  in  cases 
where  the  value  of  the  property  is  comparatively  small. 

Third.  The  action  in  equity  recognized  and  to  a  very  small 
extent  regulated  under  the  provisions  of  the  Code,  §§  1626  to 
1637.  The  procedure  is  regulated  by  the  rules  applicable  to 
courts  of  equity  and  was  well  defined  by  the  chancery  practice 
previous  to  the  adoption  of  the  Code,  and  those  rules  as  enacted 
in  the  rules  of  the  Supreme  Court,  continue  to  govern  the  method 
of  carrying  on  the  action. 

The  very  general  character  of  the  Code  regulations  doubtless 
arises  from  the  fact  that  the  foreclosure  of  mortgages  proceeded 
under  the  equity  practice  and  was  not  a  matter  of  statute  except 
to  a  very  limited  extent.  The  codifiers  seem  to  have  been  dis- 
posed to  leave  the  practice  unchanged,  and  made  no  attempt  to 
interfere  with  it  or  further  formulate  it.  The  result  is  shown  by 
the  first  section,  which  contains  the  provision  for  final  judgment, 
while  the  next  provides  as  to  the  proper  parties  to  the  action. 
Both  the  rules  and  the  provisions  of  the  Code  will  be  cited  and 
the  practice  given  as  established. 

There  formerly  existed  the  method  of  foreclosure  by  entry  and 
possession  which  is  still  common  in  New  England  States,  but  is 
not  known  in  this  State  and  will,  therefore,  not  be  considered. 
Wiltsie  on  Mortgage  Foreclosure,  §  3. 

Sub.  2.   Strict  Foreclosure. 

The  language  of  §  1626  would  seem  to  direct  a  sale  of  property 
absolutely  and  at  all  events,  and  thus  entirely  abolish  the  method 
of  foreclosure  known  as  "  strict  foreclosure."  The  language  of 
the  Revised  Statutes  with  reference  to  the  power  of  the  court 
was  "  shall  have  power  to  decree,"  while  that  of  §  1626  it  will  be 
noted  is  "  final  judgment  inust  direct  the  sale  of  the  property 
mortgaged,"  but  such  foreclosure  has  been  had  since  the  Code 
apparently  without  the  objection  being  raised;  the  lands  in  that 
case  were,  however,  without  the  State.  House  v.  Lockzvood,  i  St. 
Rep.  196;  S.  C.  40  Hun,  532;  see,  also,  Franklyn  v.  Haynvard,  61 
How.  43. 

Strict  foreclosure  was  allowable  where  foreclosure  had  once  been 
had   and   the   property  sold,  and   some  person   not  having  been 


340  FORECLOSURE. 


Act.  I.     Nature  of  the  Action  and  Courts  Having  Jurisdiction. 

made  a  party  had  a  right  to  redeem  it  for  the  purpose  of  confirm- 
ing a  title  otherwise  defective.  Bolles  v.  Duff,  43  N.  Y.  469; 
Kendall  V.  Treadwell,  14  How.  165;  Benedict  v.  Gilman,  4  Paige, 
58;  Ross  V.  Boardman,  22  Hun,  527;  Mills  v.  Dennis,  3  Johns. 
Ch.  367. 

In  Moulton  v.  Cornish,  138  N.  Y.  133,  it  is  said  that  the  equit- 
able remedy  known  as  a  strict  foreclosure  of  a  real  property  mort- 
gage has  never  been  recognized  in  this  State  save  in  a  very  limited 
class  of  cases.  It  had  its  root  in  the  common  law  doctrine  that 
the  mortgagee  acquired  a  fee  in  the  land,  and  upon  a  default  of 
payment  a  right  to  the  possession,  and  that  the  mortgagor  had 
no  estate  or  interest  therein  and  no  right  of  possession  after  a 
default  had  been  made  in  the  payment  of  the  mortgage  debt. 
The  mortgagee's  remedy  was  by  ejectment,  and  in  a  court  of  law 
it  was  not  an  available  defence  for  the  mortgagor  to  plead  that  he 
was  willing  and  ready  to  pay  the  debt  if  he  had  once  suffered  a 
default  to  occur.  In  order  to  mitigate  the  hardships  of  this  rule, 
equity  permitted  a  mortgagor  and  his  privies  to  redeem  by  dis- 
charging the  mortgaged  debt  and  by  restoring  to  him  the  posses- 
.sion  of  the  land  if  the  mortgagee  had  taken  possession.  Equity 
would  entertain  an  action  to  compel  the  parties  entitled  to  this 
right  to  exercise  it  by  paying  within  a  reasonable  time  the  amount 
of  the  mortgaged  debt  or  be  forever  barred  or  foreclosed  of  the 
right  of  redemption  and  in  case  of  redemption  the  decree  pro- 
vided that  the  mortgagee  should  reconvey  the  lands  to  the  mort- 
gagor or  other  party  redeeming. 

It  is  further  said  in  the  opinion  of  Maynard,  J.,  all  concurring: 
"  This  proceeding  has  been  termed  a  strict  foreclosure,  but  it  is 
apparent  that  it  has  no  appropriate  place  in  the  system  of  laws 
and  jurisprudence  where  it  has  been  declared  that  the  mortgage 
does  not  operate  as  a  conveyance  of  the  legal  title,  but  is  only  a 
chose  in  action  constituting  a  Hen  upon  the  land  as  security  for 
the  debt  or  other  obligation  of  the  mortgagor,  and  the  courts  of 
this  State  have  refused  to  adopt  it  as  an  authorized  remedy  in 
ordinary  cases,  and  in  this  respect  have  followed  the  practice  of 
the  civil  rather  than  of  the  common  law.'  Strict  foreclosure  is 
very  rarely  resorted  to  in  American  courts  and  in  a  large  majority 
of  the  States  it  is  not  recognized.  It  was  held  in  that  action  that 
no  case  was  made  for  a  resort  to  this  unusual,  exceptional  and 
severe  remedy;  but  it  is  said  that  it  is  unnecessary  to  determine 


FORECLOSURE.  341 


Art.  I.     Nature  of  the  Action  and  Courts  Having  Jurisdiction. 

whether  under  the  provisions  of  the  Code  such  a  judgment  can 
be  rendered  in  any  case,  the  court  assuming  that  in  a  proper  case 
jurisdiction  exists  to  reheve  a  purchaser  at  a  foreclosure  sale,  who 
finds  that,  by  reason  of  some  defect  in  the  proceedings,  the  lien  of 
a  subsequent  incumbrance  has  not  been  extinguished. 

Strict  foreclosure  should  be  resorted  to  only  in  extreme  cases  ; 
and  it  seems  that  it  is  not  called  for  in  favor  of  a  prior  mortgagee, 
in  possession  through  an  action  foreclosing  a  prior  mortgage,  de- 
fendant in  a  subsequent  action  brought  to  foreclose  a  junior 
mortgage  by  a  mortgagee  who  was  not  made  a  party  to  the  prior 
action,  instead  of  permitting  the  junior  mortgagee  to  sell  at  his 
own  expense,  where  the  defendant  prior  mortgagee's  possession 
is  under  liens  in  excess  of  the  value  of  the  mortgaged  premises, 
and  the  junior  mortgagee  cannot  sell  except  in  subordination  to 
all  his  rights.  Denton  v.  Ontario  Co.  N.  Bank,  150  N.  Y.  126,  re- 
versing ']']  Hun,  83.  The  remedy  has  not  been  allowed  by  the 
Court  of  Appeals  since  the  adoption  of  the  Code  in  1880,  and 
may,  therefore,   be  deemed  practically  obsolete. 

Sub.  3.  Courts  Having  Jurisdiction  and  Place  of  Trial. 

The  Supreme  Court  has  jurisdiction  of  mortgage  foreclosures  as 
the  successor  to  the  Court  of  Chancery.      Code,  §  217. 

The  power  conferred  upon  county  courts  by  §  340  does  not 
include  as  incidental  thereto  the  power  to  reform  a  mortgage. 
A  county  court,  therefore,  has  not  jurisdiction  of  such  an  action 
although  part  of  the  relief  asked  is  the  foreclosure  of  the  mort- 
gage after  it  has  been  reformed ;  the  remedies  are  independent 
and  may  be  attained  by  separate  actions  open  to  separate  and 
independent  defences.  Thomas  v.  Harmon,  122  N.  Y.  84;  citing 
Avery  v.  Willis,  24  Hun,  548.  See,  to  same  effect,  Thomas  v. 
Harmon,  46  Hun,  75.  But  it  is  held  that  in  an  action  to  fore- 
close a  mortgage,  the  county  court  has  jurisdiction  to  reform  the 
conditions  of  the  bond  in  relation  to  the  time  for  which  interest 
is  to  be  computed ;  such  relief  is  strictly  incidental,  secondary 
and  ancillary  to  the  foreclosure  proceedings.  Mead  v.  Langford, 
30  St.  Rep.  450. 

In  an  action  to  foreclose  a  mortgage,  where  part  of  the  lands 
covered  by  it  are  in  another  State,  the  court  has  jurisdiction  to 
decree  a  sale  of  the  whole  and  may  require  the  mortgagor  to  exe- 
cute a  conveyance  to  the  purchaser.      The   Union    Trust  Co.  v. 


342  FORECLOSURE. 


Art.  2.     Parties  Plaintiff  and  Defendant. 


Olmsted,   102  N.  Y.  729;  cited  Harrison  v.  Union   Trust  Co.  144 
N.  Y.  326. 

By  virtue  of  §  982,  an  action  to  foreclose  a  mortgage  must  be 
tried  in  the  county  where  the  property,  or  some  part  thereof,  is 
situated.  Binghamton  Iron  Foundry  v.  Hatfield,  43  N.  Y.  224; 
Gould  V.  Bennett,  59  N.  Y.  124.  This  is  the  rule,  although  the 
money  may  have  been  loaned  and  mortgage  executed  in  another 
county.  Miller  v.  Hull,  3  How.  325.  If  no  objection  is  made  that 
the  place  of  trial  is  not  the  proper  county,  it  will  not  affect  the 
regularity  of  the  proceedings.     Marsh  v.  Lowry,  26  Barb.  197. 


ARTICLE    11. 

Parties  Plaintiff  and  Defendant.    §  1627. 

Sub.  I.  Parties  plaintiff. 

2.  Necessary  and  proper  parties  defendant.     §  1627. 

3.  Prior  lienors  not  proper  parties. 

Sub.  i.   Parties  Plaintiff. 

There  is  no  provision  by  statute  as  to  parties  plaintiff  peculiar 
to  this  action. 

The  assignee  of  a  mortgage  may  foreclose.  Whitney  v.  Mc- 
Kinney,  7  Johns.  Ch.  144;  Andrews  v.  Gillespie,  de^  N.  Y.  487.  It 
is  said  in  Sivart  v.  Bennett,  4  Abb.  Ct.  of  App.  Dec.  353,  that  a 
bona  fide  assignee  for  value  of  a  mortgage  originally  given  as  con- 
sideration for  a  fraudulent  transfer  of  lands  may  foreclose,  though 
the  transfer  has  been  adjudged  void  as  against  creditors.  But  if 
the  assignment  is  as  collateral  security,  both  assignor  and  assignee 
should  join  as  plaintiffs.  Norton  v.  Warner,  3  Edw.  Ch.  105  ; 
Hoyt  V.  Martense,  16  N.  Y.  231.  The  owner,  where  he  has 
pledged  the  mortgage  as  collateral  for  a  debt  less  than  the  face  of 
the  mortgage,  has  an  interest  in  it  which  erLtitles  him  to  bring  an 
action  to  foreclose.  In  such  action  the  ipTodtgiM-  is  a  necessary 
party,  but  it  is  immaterial,  so  far  as  the  mortgagor  is  concerned, 
whether  he  is  a  party  plaintiff  or  defendant.  Simpson  v.  Satter- 
lee,  64  N.  Y.  657.  Where  plaintiff  assigned  a  mortgage  as  secu- 
rity, and  in  an  action  by  the  pledgee  it  was  adjudged  a  certain 
amount  was  due  him,  which  was  paid  by  the  owner,  it  was  held 
the  action  by  the  pledgee  was  not  a  bar  to  a  foreclosure  by  the 
owner.       C Dougherty   v.   Remington  Paper  Co.   81    N.    Y.    496. 


FORECLOSURE.  343 


Art.  2.     Parties  Plaintiff  and  Defendant. 


The  holder  of  the  mortgage  to  whom   it  has  been  assigned  as 
collateral  may  maintain   the  action  to  foreclose,  but  he  can  only 
recover  the  amount    due  him,  and  the  owner  of  the  interest,  sub- 
ject to  the  assignment,  must  be  made  a  party,  either  plaintiff  or 
defendant.      Whitney  v.  McKiniicy,  7   Johns.    144;  Carpenter  v. 
O' Dougherty,  6y  Barb.    397;  Bloomer  v.  Stiirges,  58   N.  Y.    168 
Bard  v.  Poole,   12   N.  Y.   495;  Bush  v.  Lothrop,  22   N.   Y.    535 
Salmon  ^r.  Allen,   11    Hun,   29;  Dalton  v.  Smithy  86  N.   Y,    176 
Union  College  v.  Wheeler,  61    N.  Y.  88;  Slee  v.  Manhattan  Co.  i 
Paige,  48 ;    Western  Res.  Bank  v.  Potter,  Clarke's  Ch.  432.     The 
power  to  foreclose  may  be  exercised  by  one  owning  only  a  part 
of  the  mortgage  debt,  and   if  he  claim   too  much,  that  does  not 
render  the  sale  void.     Batterman  v.  Albright,  6  St.    Rep.  334. 
If  the  party  bringing  the  foreclosure  has  not  the  entire  interest, 
the  interested   parties  should   be  plaintiffs  with  him  unless  they 
refuse,  which  should  be  alleged,  and  then  they  should  be  made 
defendants.      Lawrence  v.  Lawrence,  3   Barb.  Ch.  71  ;  LLancock  v. 
Hancock,  22  N.  Y.  568.      The  joint  holders  of  a  mortgage  should 
be  co-plaintiffs  unless  upon  refusal  of  one  to  join,  as  in  the  case 
of  assignor  and  assignee.      Code  of  Civ.    Pro.    §  448 ;    Paton  v. 
Murray.,  6  Paige,  474;  see  Lawrence  v.  Lawrence,  3  Barb.  Ch.  71  ; 
McGregor  v.  McGregor,  35  N.  Y.  218;  Carpenter  v.  O' Dougherty, 

2  T.  &  C.  427,  affirmed,  58  N.  Y.  681.  An  assignment  of  the 
mortgage  without  the  bond,  whether  in  writing  or  by  parol,  and 
as  collateral  or  otherwise,  is  a  nullity,  and  the  assignee  acquires 
no  interest  especially  as  against  a  subsequent  assignee  of  both  the 
bond  and  mortgage  —  Merrill  v.  Bartholick,  36  N.  Y.  44  — 
although  the  bond  and  mortgage  may  be  assigned  by  delivery  if 
that  is  the  intention.     Strause  v.  Josephthal,  yy  N.  Y.  622. 

Parties  who  are  entitled  to  the  benefit  of  the  mortgage  security, 
although  not  named  as  mortgagees  or  holding  an  assignment,  may 
foreclose  as  equitable  assignees  in  some  cases.  Lawrence  v.  Law- 
rence, 3  Barb.  Ch.  71  ;  Ferguson  v.  Ferguson,  2  N.  Y.  360;  Han- 
cock v.  Hancock,  22  N.  Y.  568 ;  Stewart  v.  Hutchinson,  29  How. 
181  ;  Bolles  V,  Duff,  43  N.  Y.  469;  Robinson  v.  Ryan,  25  N.  Y. 
320.  A  surety  who  has  been  obliged  to  pay  a  mortgage  debt 
may  be  subrogated  to  the  rights  of  the  mortgagee  and  maintain 
foreclosure.  Halscy  v.  Reed,  9  Paige,  446;  McLean  v.  Towle.  3 
Sandf.  Ch.  117;  Marsh  v.  Pike,  10  Paige,  595  ;  Brewer  v.  Staples, 

3  Sandf.  Ch.  579;   Tice  v.  Annan,  2  Johns.  Ch.  125;  Johnson  v. 


344 


FORECLOSURE. 


Art.  2.     Parties  Plaintiff  and  Defendant. 


Zink,  52  Barb.  396;  Cox  v.  Wheeler,  7  Paige,  248;  Cherry  v. 
Motiro,  2  Barb.  Ch.  627;  Ferris  v,  Crawford,  2  Den.  595;  Pat- 
terson V.  Birdsell,  64  N.  Y.  294;  Strause  v.  Josephthal,  yy  N.  Y. 
622;  Averill  v.  Taylor,  8  N.  Y.  44;  Calvo  v.  Davies,  73  N.  Y. 
211;  MarsJiall  v.  Davies,  78  N.  Y.  414;  Ellsworth  v.  Lockwood, 
42  N.  Y.  89;  Dings  v.  ParsJiall^  7  Hun,  522.  Two  mortgagees 
holding  contemporaneous  mortgages,  being  liens  of  the  same 
date,  may  unite  in  a  foreclosure.  Potter  v.  Crandall,  Clarke's  Ch. 
119.  See  Decker  v.  Boice,  83  N.  Y.  215  ;  Granger  v.  Crouch,  86 
N.  Y.  494,  and  Green  v.  Warnick,  64  N.  Y.  220.  Where  a  mort- 
gage is  given  to  the  special  guardian  of  an  infant,  the  guardian  is 
the  proper  person  to  file  a  bill  for  redemption  and  assignment  of 
a  second  mortgage  on  the  same  premises.     Pardee  v.  Va7i  Aiken, 

3  Barb.  534. 

It  is  held,  in  Roosevelt  \.  Ellithorp,  10  Paige,  415,  that  the  same 
person  cannot,  at  the  same  time,  foreclose  two  mortgages  on  the 
same  property  by  separate  actions.  As  to  the  right  of  fore- 
closure where  the  mortgage  was  given  to  an  executor  or  adminis- 
trator as  such,  being  vested  in  his  successor,  and  when  such  mort- 
gage, given  to  an  executor  in  his  own  name,  should  be  foreclosed 
by  the  personal  representative  of  such  executor,  see  Peck  v.  Mal- 
lams,  10  N.  Y.  509;  People  v.  Keyser,  28  N.  Y.  226;  Renaud  v. 
Conselyea,  5  Abb.  346;  Caulkins  v.  Bolton,  98  N.  Y,  511 ;  Bunn  v. 
Vaughan,  i  Abb.  Ct.  App.  Dec.  253.  Where  a  mortgage,  given 
by  an  executor  to  his  testator  during  his  lifetime,  is  the  only  asset 
of  the  estate,  and  the  executor  refuses  to  bring  an  action,  a  judg- 
ment creditor  of  deceased  may  maintain  an  action  to  compel  the 
sale  of  the  mortgaged  premises  and  the  payment  of  his  debt  from 
the  proceeds  of  the  sale.     Raynor  v.  Gordon,  16  Hun,  126. 

One  executor  or  trustee  may  foreclose  against  another.  Paton 
V.  Murray,  6  Paige,  474;  Lawrence  v.  Lawrence,  3  Barb.  Ch.  71  ; 
McGregor  v.  McGregor,  35  N.  Y.  218.  Contra,  Vrooman  v.  Strim- 
son,  7  Week.  Dig.  408.  A  foreign  executor  or  administrator  can- 
not foreclose  without  taking  out  letters  in  this  State.  Morrell  v. 
Dickey,  i  Johns.  Ch.  153;  Williams  v.  Storrs,  6  Johns.  Ch.  353; 
Doolittle  V.  Lezvis,  7  Johns.  45  ;  Vroom  v.  Van  Home,  10  Paige, 
549;  Broivn  v.  Brown,  i  Barb.  Ch.  353;  Smith  v.  Webb,  i  Barb. 
232 ;  Vermilya  v.  Beatty,  6  Barb.  429 ;  Lawrence  v.  Elmendorf, 
5  Barb.  73;  Par  sons  v.  Lyman,  20  N.  Y.  173;  Peterson  v.  Chemical 
Bank,  32  N.  Y.  21.     The  objection   must  be  taken  by  answer  or 


FORECLOSURE.  345 


Art.  2.     Parties  Plaintiff  and  Defendant. 


demurrer,  or  it  will  be  waived.  Doolittlc  v.  Lewis,  7  Johns.  Ch. 
45;  RobbinsM.  Wells,  26  How.  15;  Zabriskie  v.  Smith,  13  N.  Y. 
322;  McBride  v.  Farmers  Bank.  26  N.  Y.  457.  But  assignment 
of  mortgage,  by  a  foreign  administrator,  vests  the  title  in  the  as- 
signee, who  may  foreclose.  Smith  V.  Tiffany,  16  Hun,  552.  The 
letters  of  administration  granted  in  this  State  are  conclusive  as 
to  the  validity  of  the  appointment.  Abbott  v.  Curran,  98  N.  Y. 
665.  A  receiver,  or  the  successor  of  a  receiver,  may  foreclose  a 
mortgage  given  him  in  his  official  capacity.  Leavitt  v.  Pell,  27 
Barb.  322,  affirmed,  25  N.  Y.  474;  Attorney-General  v.  Guardian 
Mutual  Life  Ins.  Co.  yy  N.  Y.  272. 

A  mortgage  held  by  an  administrator  and  assigned  to  him 
through  a  third  party,  can  be  foreclosed  by  him  though  void- 
able as  to  next  of  kin  of  the  testator.     Read  v.  Knell,  143  N.  Y. 

484. 

The  omission  to  unite  as  a  party  in  foreclosure  one  to  whom 
the  plaintiff  has  assigned  a  partial  interest  in  the  mortgage  will 
not  invalidate  the  decree  of  foreclosure  or  furnish  a  ground  for 
collateral  attack  on  the  part  of  the  purchaser,  but  the  equity  of 
redemption  in  such  case  will  be  effectually  barred.  Batterman  v. 
Albright,    122  N.  Y.  484,  34  St.  Rep.  131. 

Where  an  emergency  occurs  which  renders  futile  a  demand 
upon  a  trustee  of  a  corporate  mortgage  to  foreclose  the  same, 
such  as  his  absence  abroad  or  his  insanity,  a  bondholder  may 
maintain  such  an  action.  In  such  case,  the  appointment  of 
a  new  trustee  before  bringing  the  action  is  not  necessary.  Ettlin- 
ger  V.  Persian  Rug  &  Carpet  Co.  142  N.  Y.  189,  36  N.  E.  Rep. 
IOS5,  58  St.  Rep.  303. 

As  to  the  proper  parties  plaintiff  on  foreclosure  of  a  contract  for 
sale  of  lands  where  the  vendor  has  died,  see  CJiampion  v.  Brown, 
6  Johns.  Ch.  398;  Moors  v.  Burrozvs,  34  Barb.  173;  Adams  v. 
Green,  34  Barb.  176;  Lewis  v.  Smith,  9  N.  Y.  502;  Thomson 
v.  Smith,  63  N.  Y.  301  ;  Schroeppel  v.  Hopper,  40  Barb.  425. 

Sub.   2.    Necessary   and   Proper    Parties   Defendant.     §  1627. 

§  1627.  Person  liable  for  mortgage  debt  may  be  made  defendant,  etc. 

Any  person  who  is  liable  to  the  plaintiff  for  the  payment  of  the  debt  secured 
by  the  mortgage,  may  be  made  a  defendant  in  the  action;  and  if  he  has  appeared, 
or  has  been  personally  served  with  the  summons,  the  final  judgment  may  award 
payment  by  him  of  the  residue  of  the  debt  remaining  unsatisfied,  after  a  sale  of 


346 


FORECLOSURE. 


Art.  2.     Parties  Plaintiff  and  Defendant. 


the  mortgaged  property,  and  the  application  of  the  proceeds,  pursuant  to  the  di- 
rections contained  therein. 

Vested  remaindermen  under  a  will  are  necessary  parties  to  an 
action  to  foreclose  a  mortgage  given  by  a  testator.  Levy  v.  Levy, 
79  Hun,  290,  60  St.  Rep.  561,  29  Supp.  384,  31  Abb.  N.  C.  468. 

Where  a  mortgagor  was  a  bankrupt  and  neither  he  nor  his 
assignee  were  made  parties  to  the  foreclosure,  it  was  held  that  the 
title  of  the  assignee  was  not  divested  by  a  judgment  in  a  subse- 
quent action  brought  by  the  administrator  of  the  mortgagee  who 
had  bought  in  the  property  at  a  former  sale  in  foreclosure,  a 
second  suit  being  brought  against  him  individually  and  not  as 
assignee.  TozvnsJiend  v.  Thompson,  46  St.  Rep.  847,  18  Supp. 
870,  citing  Landon  v.  ToivnsJiend,  112  N.  Y.  93,  reversing  44 
Hun,  561,  holding  that  to  bind  the  estate  of  a  bankrupt  in  the 
hands  of  his  assignee  by  a  judgment  of  foreclosure  in  a  suit  com- 
menced after  the  bankruptcy  and  after  title  to  the  mortgaged 
property  has  become  vested  in  the  assignee,  it  is  indispensable 
that  the  suit  should  be  brought  against  him  distinctively  in  his 
representative  or  official  character  or  at  least  that  it  should  in 
some  way  appear  on  the  face  of  the  proceedings  that  they  related 
to  and  affected  the  bankrupt's  estate.  It  is  not  sufficient  that  he 
is  individually  made  defendant,  in  the  absence  of  an  averment  in 
the  complaint  of  his  representative  character  or  an  answer  or 
appearance  by  him  in  that  character.  Contra,  Graham  v.  Foun- 
tain, 2  Supp.  598. 

In  Scholle  v.  Scholle,  113  N.  Y.  261,  it  is  held  that  where 
remaindermen  took  a  vested  interest  in  lands,  such  interests  were 
not  cut  off  by  a  foreclosure  suit,  to  which  they  were  not  made 
parties.  An  assignee  in  bankruptcy,  whose  title  is  subject  to  a 
mortgage,  is  a  necessary  party  to  an  action  of  foreclosure. 
Ostrander  v.  Hart,  30  St.  Rep.  170.  A  party  in  possession  at  the 
time  of  the  commencement  of  an  action  of  foreclosure  is  a  proper 
party  defendant  in  the  absence  of  any  allegation  or  evidence  that 
such  party  was  in  possession  under  some  right  or  title  superior  to 
the  mortgagor.  Riiyter  v.  Reid,  31  St.  Rep.  387.  So  is  a  pur- 
chaser at  a  tax  sale.  Ruytcr  v.  Nickes,  22  St.  Rep.  200.  The  as- 
signor of  a  mortgage  where  it  has  been  assigned  as  security 
should  be  made  a  party.     Matter  of  Gilbert,  104  N.  Y.  200. 

Failure  to  make  a  general  assignee  a  party  is  cured  after  the 
lapse  of  twenty-five  years.     Kip  v.  Hirsch,  103  N.  Y.  565. 


FORECLOSURE.  347 


Art.  2.     Parties  Plaintiff  and  Defendant. 


On  foreclosure  of  a  mortgage  given  by  one  to  whom  a  testa- 
mentary trustee  had  conveyed  property,  without  consideration, 
under  an  agreement  for  an  immediate  reconveyance,  neither  the 
beneficiaries  under  the  will,  nor  the  heirs-at-law  of  the  testator 
were  made  parties,  which  fact  was  not  known  to  the  purchaser 
at  the  time  of  the  sale,  it  was  held  to  be  a  fatal  defect  in  the  title. 
Phillips  V.  Wilcox,  12  Misc.  382.  Where  a  judgment  creditor 
whose  judgment  w^as  recovered  prior  to  the  execution  of  the  mort- 
gage was  not  a  party,  such  creditor  was  held  not  affected  by  the 
decree  and  is  not  a  proper  party.  Sumner  v.  Skinner,  80  Hun, 
201,  61  St.  Rep.  797,  30  Supp.  4. 

Under  the  rule  in  chancery  proceedings  in  force  at  the  time  of 
the  foreclosure  in  1838,  personal  service  of  the  writ  upon  plain- 
tiff was  not  necessary,  but  service  on  the  husband  was  a  good 
service  on  both,  and  this  was  so  although  she  was  at  the  time 
underage.  Feitjierv.  Lewis,  iig^.Y .  131.  Under  the  chancery 
practice  in  an  action  for  foreclosure  where  the  wife  had  only  an 
inchoate  right  of  dower,  service  of  summons  on  the  husband  was 
good  for  both  husband  and  wife.  Ferguson  v.  Smith,  2  Johns. 
Ch.  139;  Leavitt  v.  Cruger,  i  Paige,  421. 

That  rule  has  been  abolished  and  where  the  wife  is  not  per- 
sonally served,  a  judgment  recovered  in  the  action  is  void  as  to  her, 
and  where  a  mortgage  given  by  a  man  and  wife  is  foreclosed,  and 
the  wife  is  not  served  with  the  process  in  the  foreclosure  action, 
she  may,  after  a  sale  of  the  mortgaged  premises  and  during  the 
life-time  of  the  husband,  maintain,  because  of  her  inchoate  dower 
interest,  an  action  to  redeem  the  mortgaged  premises.  Taggert 
V.  Rogers,  49  Hun,  265.  Same  rule  is  held  in  Campbell  v.  Ell- 
tvanger,  81  Hun,  259, 

After  a  purchase-money  mortgage  was  signed  by  the  mortgagee, 
it  was  discovered  that  the  premises  were  wrongfully  described,  the 
mortgagee  and  wife  then  executed  and  delivered  a  new  deed  and 
an  agreement  was  made  correcting  the  mortgage,  helel  that  the 
mortgagee  had  no  further  interest  in  the  enforcement  of  the 
mortgage  and  was  not  a  necessary  or  proper  party  to  an  action 
to  foreclose  the  same.      Haaren  v.  Lyons,  30  St.  Rep.  416, 

It  was  held  in  the  United  States  Trust  Co.  v.  Roche,  116  N.  Y. 
120,  upon  the  facts  in  that  case,  that  where  the  interest  of  a  per- 
son in  the  mortgaged  property  was  contingent  upon  his  surviving 
another,  he  had  no  vested  legal  estate  in  or  lien  upon  the  premises, 


348  FORECLOSURE. 


Art.  2.     Parties  Plaintiff  and  Defendant. 


or  a  vested  interest  in  the  avails  when  converted  into  money  and 
so  was  not  a  necessary  party  to  the  action. 

Although  where  the  mortgagor  has  conveyed  his  interest  he  is 
not  a  necessary  party  to  foreclosure,  yet  if  he  is  not  made  a 
party,  it  is  necessary  to  make  one  deriving  title  or  interest  from  him 
subsequent  to  the  mortgage  a  party  in  order  to  bar  his  right  of 
redemption.  For  the  purpose  of  charging  subsequent  grantees 
or  incumbrancers  not  made  parties,  the  fact  that  the  mortgagor 
has  conveyed  the  property  does  not  obviate  the  necessity  of  serv- 
ing summons  and  complaint  on  him  and  charging  him  by  the 
decree.  Kjirsheedt  v.  Union  Dime  Savings  Institution,  ii8  N.  Y. 
358,  S.  C.  28  St.  Rep.  933,  affirming  7  St.  Rep.  874. 

Where  the  rents  and  profits  derived  from  real  property  are  di- 
rected to  be  invested  and  the  income  to  be  divided,  the  parties 
for  whose  benefit  the  provision  is  made,  are  not  necessary  parties 
to  the  foreclosure.  Mutual  Life  Ins.  Co.  v.  Woods,  21  St.  Rep. 
341.  Nor  are  unsecured  creditors  of  a  railroad  corporation  neces- 
sary or  proper  parties  to  an  action  to  foreclose  a  mortgage  upon 
the  property  of  the  corporation.  Nor  is  the  receiver  of  such 
corporation  a  necessary  party,  or  the  people  when  an  action  has 
been  commenced  to  dissolve  the  corporation,  although  the  court 
has  power  to  allow  either  the  receiver  or  the  people  to  intervene 
in  the  action.     Herring  v.  N.  Y.  L.  E.  etc.  Co.  105  N,  Y.  340. 

One  who  has  an  interest  in  the  land,  the  deed  of  the  whole  of 
which  was  made  to  another,  may  be  made  a  party  if  he  desire. 
Johnston  v.  Donovan,  106  N.  Y.  269.  Beneficiaries  of  a  trust  are 
necessary  parties.  Lockinan  v.  Reilly,  95  N.  Y.  64.  Persons 
against  whom  an  estoppel  is  claimed  are  necessary  parties. 
Lyo7i  V.  Morgan,  143  N.  Y.  505.  Where  there  was  a  fraudulent 
prior  foreclosure  and  the  record  qf  the  first  foreclosure  showed  the 
interests  and  probable  relation  of  the  widow  and  children,  that 
was  enough  to  put  any  one  dealing  with  the  title  upon  notice. 
Kir  sell  V.  Tozier,  143  N.  Y.  390;  General  Synod  v.  O'Brien,  13 
Misc.  729. 

A  person  to  whom  a  conveyance  is  to  be  made,  but  is  not  yet 
delivered,  in  not  a  necessary  party.  Hatfield  v.  Malcolm,  71  Hun, 
51,  Nor  a  former  owner  when  divested  of  all  title.  Connecticut 
Mutual  Life  Ins.  Co.  v.  Cormvall,  72  Hun,  199.  Nor  the  holder 
of  mortgage  recorded  after  devolution  of  title  unto  a  bona  fide 
purchaser  for  value.     Abraham  v.  Mayer,   7  Misc.  250.      Nor  a 


FORECLOSURE.  349 


Art.  2.     Parties  Plaintiff  and  Defendant. 


.subsequent    grantee   in    possession    under    an   unrecorded    deed. 
Powell  V.  yenkins,  14  Misc.  83. 

The  mortgagor,  if  he  has  not  parted  with  his  title,  is  a  necessary- 
defendant.  Reed  V.  Marble,  10  Paige,  409;  Griswold  v.  Foivler, 
6  Abb.  113;  Kay  v.  Whittaker,  44  N.  Y.  565;  Raynor  v.  Sehnes, 
52  N.  Y.  579;  Watson  v.  Spence^  20  Wend.  260;  Hall  v.  Nelson, 
14  How.  32.  Or  if  he  has  conveyed  by  an  unrecorded  convey- 
ance. Ostrom  V.  McCann,  21  How.  431  ;  Kipp  v.  Brandt,  49  How. 
358 ;  Hallv.  Nelson,  14  How,  32,  supra.  He  is  not  a  necessary  party 
where  he  has  parted  with  his  title  by  a  recorded  conveyance.  Trus- 
tees v.  Yates,  I  Hoff.  Ch.  142;  Griswold  v.  Fowler,  6  Abb.  133; 
Whit7iey  v.  Mc Kinney,  7  Johns.  Ch.  144 ;  Bigelow  v.  Bush,  6  Paige, 
343;  Van  Nest  v.  Latson,  19  Barb.  604.  See  Root  v.  Wright,  21 
Hun,  344,  reversed  on  another  point,  Walton  v.  James,  1 1  Week. 
Dig.  508.  The  real  owner  of  mortgaged  premises  does  not 
forfeit  his  right  to  be  made  a  party  to  an  action  to  foreclose  the 
mortgage  by  omission  to  record  his  deed ;  and  provided  he  make 
application  in  due  time,  it  is  the  duty  of  the  court  to  direct  him 
to  be  brought  in.  Johnson  v.  Donovan,  106  N.  Y.  269.  Persons 
who  have  absolutely  conveyed  all  their  interests  in  the  equity,  and 
who,  as  between  parties,  bear  only  the  relation  of  sureties  as  to  the 
personal  obligation  of  one  party  to  pay  the  bond,  are  not  neces- 
sary parties,  though  they  may  be  proper.  Root  v.  Wright,  21 
Hun,  34,  reversed  on  another  point,  84  N.  Y.  72.  Where  the 
bond  is  executed  by  the  mortgagors  and  another,  it  is  proper  to 
make  all  parties  and  demand  judgment  against  all.  Thoryie  v. 
Newby,  59  How.  120.  The  holder  of  the  equity  of  redemption  is 
a  necessary  defendant.  Hall  v.  Nelson,  14  How.  32 ;  Miner  v. 
Beekman,  50  N.  Y.  337;  Raynor  v.  Selines,  52  N.  Y.  579;  Wins- 
low  V.  Clark,  47  N.  Y.  261  ;  Robinson  v.  Ryan,  25  N.  Y.  320. 
The  failure  to  make  the  purchaser  a  party  will  be  waived  if  not 
pleaded.  Davis  v.  Bcchstein,  69  N.  Y.  z^.o.  But  intermediate 
purchasers,  who  retain  no  interest,  are  not  necessary  defendants. 
Lockwood  V.  Betiediet,  3  Edw.  Ch.  472.  In  case  deficiency  is 
sought  against  any  of  these  parties,  of  course  they  are  necessarily 
made  parties.  If  the  mortgagor  died  holding  the  title,  his  heirs 
should  be  made  defendants.  Noonan  v.  Brennerman,  8  St.  Rep. 
91  ;  Woodv.  Morehouse,  i  Lans.  405  ;  Doddv.  Neilson,  90  N.  Y.  243. 
It  is  held  in  Leonard  v.  Morris,  9  Paige,  90,  that  the  personal 
I'epresentativcs  of  a  deceased  mortgagor  are  not  necessary  parties ; 


350  FORECLOSURE.  M 

An.  2.     Parties  Plaintiff  and  Defendant. 

the  contrary  is  held  in  Shaw  v.  McNish,  i  Barb.  Ch.  328.  The 
wife  of  the  owner  of  the  equity  of  redemption  is  a  necessary  party. 
Wheeler  V.  Morris,  2  Bosw.  524;  Denton  v.  Nanny,  8  Barb.  618; 
Vartie  v.  Undertvood,  18  Barb.  561  ;  Mills  v.  Van  Voorhis,  20  N. 
Y.  412;  Bell  w.  Mayor,  10  Paige,  49;  Merchants'  Bank  v.  Thomp- 
son, 55  N.  Y.  7.  The  personal  representatives  and  not  the  heirs 
of  a  deceased  subsequent  mortgagee  are  necessary  and  proper  par- 
ties. German  Savings  Bank  V.  Mnller,  10  Week.  Dig.  67.  Where 
a  mortgagor,  who  was  personally  liable  for  any  deficiency,  is  dead, 
his  representatives  may  be  made  parties,  and  a  decree  rendered 
that  the  deficiency  be  paid  out  of  the  estate  in  their  hands  in  due 
course  of  administration.  Glaciiis  v.  Fogcl,  88  N.  Y.  439.  Plain- 
tiff is  entitled  to  have  the  deficiency  paid  from  the  mortgagor's 
personal  estate  after  his  death,  and  so  much  as  is  caused  by  the 
mortgagor's  omission  to  pay  taxes  is  a  preferred  debt.  Mitchell 
V.  Bownc,  63  How.  i.  It  seem^s  that  legatees,  devisees,  heirs  or 
next  of  kin  of  one  who  was  personally  liable  for  the  payment  of 
I  a  mortgage  may  be  joined  as  defendants  to  charge  them  with 
I  statutory  liability  for  deficiency  to  the  extent  of  the  assets  received 
''by  them.  Collins'  Petition,  6  Abb.  N.  C.  ij .  Contract  creditors 
of  a  decedent  cannot  be  allowed  to  defend  against  a  foreclosure 
on  real  estate  owned  by  him  in  his  lifetime.  Gardner  v.  Lansiftg, 
28  Hun,  413.  Where  the  will  directs  the  executors  to  sell  the 
real  estate,  divide  the  proceeds  among  the  residuary  legatees,  and 
the  legatees  elect  to  take  the  land,  the  executors  are  not  neces- 
sary parties.     Prentice  v.  Jansen,  7  Week.  Dig.  318. 

In  Kay  v.  Whittaker,  44  N.  Y.  265,  it  is  said  that  the  wife  need 
not  be  joined  in  order  that  the  action  may  be  maintained,  but  that 
her  interest  is  not  affected  by  such  an  action.  The  v/ife  is  a 
necessary  party  if  married  after  the  g'ving  of  the  mortgage. 
Smith  V.  Gardner,  42  Barb.  356.  As  to  whether  the  wife  is  a 
necessary  party  to  the  foreclosure  of  a  purchase-money  mortgage, 
see  Mills  v.  Va)i  Voorhees,  20  N.  Y.  412,  and  Breckett  v.  Baum^ 
50  N.  Y.  8.  Persons  having  liens  on  the  mortgaged  premises  as 
legatees  are  necessary  parties.  McGozun  v.  Ycrks,  6  Johns.  Ch. 
450;  Hebron  Society  v.  Schoen,  60  How.  185.  If  the  equity  of 
redemption  is  vested  in  a  trustee,  both  the  trustee  and  cestui  que 
trust  should  be  made  parties.  Williamson  v.  Field,  2  Sandf.  Ch. 
'533;  Casew.  Price,  9  Abb.  in;  Grant  v.  Duane,  9  Johns.  591  ; 
Paton  v.  Murray,  6  Paige,  474 ;  Nodine  v.  Greenfield,  7  Paige,  547 ; 


FORECLOSURE.  351 


Art.  2.     Parties  Plaintiff  and  Defendant. 


Leggett  V.  Mutual  Ins.  Co.  64  Barb.  36;  Ransom  v.  Lainpman,  5 
Barb.  456;  Eagle  Fire  Ins.  Co.  v.  Cainviet,2  Pldw.  Ch.  127;  Rath- 
bone  V.  Hooney,  58  N.  Y.  463  ;  King  v.  McVickers,  3  Sandf.  Ch.  192  ; 
Toole  w.  McKiernan,  48  Super.  Ct.  163  ;  Doddw.Neilso?i,go  N.Y.  243. 
See  Fb:«  Vechtenv.  Terry,  2  Johns.  Ch.  197;  Christie  v.  Herrick, 
I  Barb.  Ch.  254.  Where  beneficiaries  were  very  numerous  the  rule 
was  relaxed.  In  case  of  trustee  for  creditors  the  creditors  are  not 
necessary  parties.  Grant  v.  Duanc,  9  Johns.  591.  Reversioners 
and  remaindermen  arc  necessary  parties,  but  not  every  person 
having  a  contingent  interest.  Eagle  Ins.  Co.  v.  Cainmet,  2  Edw. 
Ch.  127;  Nodine  v.  Greenfield,  7  Paige,  547;  Leggett  \.  Mutual 
Life  Ins.  Co.  64  Barb.  36;  Rathbone  v.  Hooney,  58  N.  Y.  463; 
Brevoort  v.  Brevoort,  70  N.  Y.  136;  Lockzvood  \.  Reilly,  10  Abb. 

N.  C.  351- 

The  assignee  in  bankruptcy  of  the  holder  of  the  title  is  a  neces- 
sary defendant.  Cleveland  v.  Boeruin,  24  N.  Y.  617.  But  not  if 
appointed  after  suit  brought.  Lenihan  v.  Haniann,  55  N.  Y.  652  ; 
Wagner  v.  Hodge,  34  Hun,  524.  A  general  assignee  is  also  a 
necessary  defendant.     Bard  v.  Pool,  12  N.  Y.  475. 

Persons  not  judicially  declared  to  be  of  unsound  mind  may  be 
made  parties  with  the  same  force  and  effect  as  if  sane.  Prentiee 
V.  Cornell,  31  Hun,  167,  citing  Mut.  Life  Ins.  Co.  v.  Hunt,  14 
Hun,  169;  Sanford  v.  Sanford,  62  N.  Y.  553.  Tenants  under  a 
lease  subsequent  to  the  mortgage  and  actual  occupants  of  the 
mortgaged  premises  are  necessary  parties.  Hirseh  v.  Livittgston, 
3  Hun,  9;  Whale  n  v.  White,  25  N.  Y.  462;  Clark  son  v.  Skidmore, 
47  N.  Y.  297;  Globe  Marble  Mills  v.  Quinn,  76  N.  Y.  23.  In  order 
that  the  purchaser  may  obtain  a  perfect  title,  subsequent  lienors 
are  necessary  defendants,  as  are  holders  of  subsequent  mortgages. 
If  not  a  party  he  may  redeem.  Arnot  v.  Post,  6  Hill,  65  ;  Frank- 
lyn  V.  Hayward,  61  How.  43;  Benedict  v.  Gihnan,  4  Paige,  58; 
Vroom  V.  Ditrnas,  4  Paige,  526;  Vanderkemp  v.  Shelton,  11  Paige, 
28;  Brainard  v.  Cooper.  10  N.  Y.  356;  Gage  v.  Brewster,  31  N. 
Y.  218;  Pcabody  v.  koberts,  47  Barb.  91  ;  Benjamin  v.  Elmira,  etc. 
R.  R.  Co.  54  N.  Y.  675.  And  the  liens  of  judgment  creditors 
will  not  be  cut  off  unless  they  are  made  parties.  Niagara  Ba?ik 
V.  Roosevelt,  9  Cow.  4C9;  People's  Bank  v.  Hamilton  Manuf.  Co., 
10  Paige,  481  ;  Morris  v.  Wheeler,  45  N.  Y.  708;  Verdin  v.  Slocum, 
71  N.  Y.  345;  Hubbcll  V.  Sibley,  5  Lans.  51  ;  Weinbrewer  v. 
Johnson,  7  Abb.   (N.   S.)  202;  Root  v.    Wheeler,    12   Abb.    294; 


35-  FORECLOSURE. 


Art.  2.     Parties  Plaintiff  and  Defendant. 


Groff  V.  Morehouse,  51  N.  Y.  503;  Lyon  v.  Lyon,  6y  N.  Y.  250. 
J  udgment  creditors  who  are  not  lienors  are  not  necessary  parties. 
Spring  V.  Short,  90  N.  Y.  538.  Nor  are  general  creditors.  Gard- 
ner V,  Lansings  28  Hun,  413  ;  People  v.  Erie  Railway  Co.  56  How. 
122.  Holders  of  valid  mechanics'  liens  are  necessary  parties  in 
order  to  cut  off  their  liens.  Payne  v.  Wilson,  74  N.  Y.  348 ;  Emi- 
gra?it  Savings  Bank  V.  Goldman,  75  N.  Y.  127.  It  is  proper  to 
make  purchasers  at  tax  sales  parties  defendant.  Becker  v.  Howard, 
4  Hun,  359;  s.  C.  69  N.  Y.  5.  On  motion  for  reargument, 
Roosevelt  Hospital  v.  Dow  ley,  57  How.  489. 

The  husband  of  the  owner  of  the  equity  of  redemption  is  not  a 
necessary  party.  Mapes  v.  Brown,  14  Abb.  N.  C.  94;  Trustees, 
etc.  V.  Roth,  14  Week.  Dig.  459,  A  married  woman  taking  a 
conveyance  and  assuming  a  mortgage,  is  liable  as  if  she  were 
sole;  Cashman  v.  Henry,  75  N.  Y.  103;  and  where  a  married 
woman  owns  the  equity  her  judgment  creditors  are  necessary 
parties,     Morris  v.  Wheeler,  45  N.  Y„  708. 

Where  the  ownership  of  the  mortgage  h  disputed,  the  various 
claimants  may  be  made  parties.  Kortright  v.  Smith,  3  Edw.  Ch. 
402.  See  note,  5  Civ.  Pro.  R.  108,  as  to  who  should  be  defend- 
ants in  foreclosure.  No  person  should  be  made  a  party  except 
those  who  have  title  to  or  lien  upon  the  premises.  Gardner  v. 
L^ansing,  28  Hun,  413.  But  one  who  has  or  claims  to  have  an 
interest  in  the  premises  subordinate  to  that  of  plaintiff  is  a  proper 
defendant  in  foreclosure.  Mutual  Life  Lns.  Co.  v.  Hoyt,  15 
Week.  Dig.  489.  The  only  proper  parties  are  the  mortgagor, 
the  mortgagee,  and  those  who  have  acquired  rights  under  them, 
subject  to  the  mortgage,  and  these  parties  only  are  affected  by 
the  judgment  of  foreclosure.  Emigrant  Savings  Bank  v.  Gold- 
man, 75  N.  Y.  127;  Kent  v.  PopJiam,  6  Civ.  Pro.  R.  336.  Where 
the  grantee  covenants  to  pay  the  mortgage  he  becomes  the  prin- 
cipal debtor,  and  is  liable  for  deficiency.  Fleischauer  v.  Gug- 
^enheimer,  15  Week.  Dig.  164.  In  an  action  which  arose  pre- 
vious to  the  present  Code,  it  was  held,  that  one  who,  in  an 
assignment  of  a  bond  and  mortgage,  guaranteed  its  payment  "  by 
due  foreclosure  and  sale,"  is  a  proper  defendant.  Vanderbilt  v. 
Schryer,  91  N.  Y.  392.  A  city  need  not  be  made  a  party  where 
it  has  taken  a  portion  of  the  property  for  public  use.  Hooker  v. 
Martin,  10  Hun,  302.  One  whose  mortgage  is  recorded  but  not 
indexed  is  a  necessary  party  to  the  foreclosure  of  a  prior  mort- 


FORECLOSURE.  353 


Art.  2.     Parties  Plaintiff  and  Defendant. 


gage,  and  if  not  joined,  the  foreclosure  is  void  as  to  him.  Mt4- 
tual  Life  Ins.  Co.  v.  Dake,  i  Abb.  N.  C.  381,  affirmed,  87  N.  Y. 
257.  An  assignee  of  a  judgment  who  took  it  only  to  collect  for 
the  assignor,  and  has  sold  the  land  and  received  a  sheriff's  deed 
is  not  a  necessary  party ;  only  the  assignor  need  be  made  a  party. 
McKce  V.  Murphy,  34  Supr.  Ct.  261.  Grantees  of  the  mortgaged 
premises  whose  deed,  though  executed,  is  unrecorded,  are  not 
necessary  parties,  they  are  bound  by  the  judgment.  Kindbery  v. 
Freeman,  39  Hun,  466.  If  under  a  will  the  fee  of  the  testator's 
realty  is  vested  in  his  heirs-at-law,  they  must  be  made  parties  to 
the  foreclosure  of  a  mortgage  existing  at  the  time  of  the  testa- 
tor's death,  and  it  is  not  enough  to  join  the  executor.  Noonan 
V.  BrennemaJin,  8  St.  Rep.  91. 

A  grantee  of  lands  whose  deed  was  not  recorded  until  after  a 
deed  of  the  same  premises  given  by  his  grantor  to  another,  and 
then  only  in  the  book  of  mortgages,  is  not  a  necessary  party  to 
an  action  to  foreclose  a  mortgage  given  by  his  grantor  to  which 
a  subsequent  grantee  was  made  a  party.  Abraham  v.  Mayer,  7 
Misc.  250,  27  Supp.  264,  58  St.  Rep.  29. 

The  possession  of  the  grantee  under  an  unrecorded  deed  is  not 
notice  which  will  require  him  to  be  made  a  party  to  a  foreclosure 
action  unless  such  possession  is  actual,  open  and  visible,  and  not 
equivocal  or  consistent  with  the  title  of  the  apparent  owner  by 
the  record.  Potvcllv.  Jenkins,  14  Misc.  83,  35  Supp.  265,  69  St. 
Rep.  582. 

The  Code  of  Procedure,  §  132,  relative  to  lis  pendens,  and 
§  1670  and  1671,  Code  of  Civil  Procedure,  contemplate  that  those 
whose  conveyances  appear  by  the  record  should  be  made  parties 
in  order  to  charge  with  the  result  of  the  action  those  holding 
under  or  through  them  not  made  parties,  whose  interests  do  not 
so  appear  at  the  time  of  such  filing,  although  where  the  mortgagor 
has  conveyed  his  interest  he  is  not  a  necessaiy  party  to  the 
foreclosure.  If  he  is  not  made  a  party,  it  is  necessary  to  make 
one  deriving  title  or  interest  from  him,  subsequently  to  the 
mortgagor,  a  party  in  order  to  bar  his  right  of  redemption ;  for 
the  purpose  therefore  of  charging  subsequent  grantees  or  in- 
cumbrancers not  made  parties,  the  fact  that  the  mortgagor  has 
conveyed  the  property  does  not  obviate  the  necessity  of  serving 
the  summons  and  complaint  upon  him  and  charging  him  by  the 
decree.  Ktirshccdt  v.  Union  Dime  Savings  Institution,  1 18  N.Y.  358. 
[Special  Actions  —  23.] 


354  FORECLOSURE. 


Art.  2.     Parties  Plaintiff  and  Defendant. 


Where  a  mortgage  was  executed  in  1853  and  the  mortgagor 
shortly  afterward  left  the  State,  he  being  a  sailor,  and  has  never 
since  been  heard  from,  on  foreclosure  the  mortgagor  was  made 
defendant  and  also  all  unknown  owners,  such  owners  being 
therein  described  as  the  wife,  widow,  heirs-at-law,  devisees,  gran- 
tees, assignees  or  next  of  kin,  if  any,  of  said  defendant,  and  their 
respective  husbands  and  wives,  if  any,  all  of  whose  names  were 
unknown ;  held,  that  the  unknown  parties  were  properly  desig- 
nated;  that  judgment  could  be  entered  against  them  without  evi- 
dence that  they  were,  in  fact,  unknown  or  absentees,  or  that  the 
mortgagor  died  without  heirs-at-law  or  next  of  kin,  and  that  a 
sale  on  the  foreclosure  conveyed  a  good  title.  Moran  v.  Conomo, 
36  St.  Rep.  680. 

The  owner  of  the  equity  of  redemption  is  a  necessary  party, 
and  if  the  suit  proceeds  without  him  the  title  will  not  be  affected. 

Landon  v.  Toiv7ishend,  16  Civ.  Pro.  R.  161,  reversing  44  Hun, 
561.  See,  as  to  effect  of  making  a  person  entitled  to  dower  party 
defendant.  Article  V,  Subd.  4. 

Sub.  3.   Prior  Lienors  not  Proper  Parties. 

Prior  incumbrancers  are  neither  necessary  nor  proper  parties 
to  an  ordinary  action  for  foreclosure.  Goebel  w.  Iffla,  in  N.  Y. 
170.  Nor  any  person  claiming  under  a  title  paramount  to  the 
mortgage.  Helck  v.  Reinheimcr,  105  N.  Y.  470;  Ruyter  v.  Rcid, 
121  N.  Y.  498  ;  and  where  the  rights  of  such  a  party  are  paramount 
and  adverse  to  claim  of  plaintiff  under  the  mortgage,  they  cannot 
be  adjudicated  in  the  action  unless  such  defendant  consents 
thereto.  Crotmvcll  v.  McLean,  123  N.  Y.  474,  cited  Oliphant  v. 
Burns,    146  N.  Y.  218.     See  Nelson  v.  Brozvn,  144  N.  Y.  384. 

Prior  mortgagees  are  not  necessary  parties.  Ferris  v.  Hard, 
17  St.  Rep.  364;  s.  c.  15  Civ.  Pro.  R.  171. 

Prior  assignor  of  the  creditor  is  a  proper  but  not  a  necessary 
party  to  foreclosure.     Merrill  v.  Bischoff,  3  App.  Div.  361. 

Only  such  persons  are  required  to  be  parties  to  a  foreclosure  as 
have  acquired  rights  or  interests  or  claim  so  to  have  done  subse- 
quent to  the  mortgage.  Any  interest  acquired  prior  thereto  can- 
not be  considered  or  determined  in  such  an  action.  Brain  v. 
Bram,  34  Hun,  487. 

It  seems  also  that  where  one  is  in  possession  of  land  claiming 
title  under  a  conveyance  on  a  tax  sale,  he  is  not  a  proper  party  to 


FORECLOSURE.  355 


Art.  2.     Parties  Plaintiff  and  Defendant. 


the  action  to  foreclose  a  mortgage  upon  the  land  given  prior  to 
the  sale,  his  rights  are  paramount  and  adverse  and  the  claim  of 
the  defendant  may  not,  therefore,  be  adjudicated  in  the  action. 
Such  person,  however,  when  made  party  defendant,  may  consent 
that  the  question  as  to  the  validity  of  his  title  be  adjudicated 
therein  and  in  which  case  the  court  has  the  right  to  pass  upon  the 
question.  And  where  a  defendant  incorporated  in  her  pleading  a 
positive  request  that  such  question  be  passed  upon,  the  judgment 
in  the  action  is  binding  upon  all  parties.  Cronnvcll  v.  McLanCy 
123  N.  Y.  474,  34  St.  Rep.  85,  citing  Helck  v.  Reinlieimer^  105 
N.  Y.  470. 

Although  the  holder  of  a  prior  mortgage  is  not  a  proper  party 
and  his  interest  will  not  be  cut  off  under  a  complaint  containing 
the  usual  allegation  that  defendant's  interest  is  subordinate  to 
that  of  plaintiff,  yet  where  the  complaint  alleges  the  prior  incum- 
brance and  prays  that  the  amount  due  thereon  be  ascertained  and 
first  paid  out  of  the  proceeds  of  the  sale,  and  the  defendant  suffers 
default,  he  is  concluded  thereby  and  the  judgment  operates  as  a 
bar  to  a  subsequent  action  to  foreclose  his  mortgage ;  he  should 
appear  and  raise  an  objection  by  demurrer  or  answer  that  his 
rights  cannot  be  adjudicated.  Jacobie  v.  Mickle,  144  N.  Y.  237, 
63  St.  Rep.  102  ;  Fletclier  v.  Barber,  82  Hun,  405,  63  St.  Rep. 
568,  31  Supp.  239. 

Persons  who  make  claims  under  a  paramount  title  are  not  neces- 
sary parties  to  an  action  of  foreclosure.  Fifth  Avoiue  Bk.  of 
Brooklyn  v.  Cudlipp,  i  App.  Div.  524,  37  N.  Y.  Supp.  248,  72 
St.  Rep.  528. 

In  an  action  to  foreclose  a  mortgage,  one  vv'ho  claims  adversely 
to  the  mortgagor  and  mortgagee,  and  whose  claim  arose  prior  to 
the  mortgage,  cannot  properly  be  made  a  party  defendant  for  the 
purpose  of  trying  the  validity  of  such  adverse  title.  Dinnond  v. 
Church,  4  App.  Div.   194. 

The  mortgagee  has  no  right  to  make  a  person,  claiming  title  to 
the  premises  adversely  to  that  of  the  mortgagor,  and  prior  to  the 
mortgage,  a  defendant.  Lcicis  v.  S?nith,  9  N.  Y.  502;  Meigs  y. 
Willis,  5  Civ.  Pro.  R.  106;  Corning  v.  Smith,  6  N.  Y.  82;  Ne/ek 
V.  ReinJieinier,  23  Week.  Dig.  473 ;  Brnndage  v.  Domestie,  etc. 
Society,  60  Barb.  204;  Kent  v.  Pophani,  6  Civ.  Pro.  R.  366;  Brant 
V.  Br  am,  34  Hun,  487;  Mercantile  Trust  Co.  v.  Rochester,  etc.  Ry. 
22  Week.  Dig.  65  ;  Ratlibone  v.  Hooney,  58  N.  Y.  463  ;  Keeler  v. 


356 


FORECLOSURE. 


Art.  3.     Complaint  and  Notice  of  Pendency  of  Action. 

McNcirney,  6  Civ.  Pro.  R.  363;  Merchants  Bank  v.  TJiompson,^^ 
N.  Y.  7;  Emigrant  Bank  v.  Goldman,  75  N.  Y.  127;  Smith  v. 
Davis,  \Q\\.  Pro.  R.  158.  Persons  claiming  to  be  prior  lienors 
are  proper  parties.  Brown  v.  Volkening,  64  N.  Y.  76;  Adams  v. 
McPartlin,  11  Abb.  N.  C.  369.  For  the  purpose  of  ascertaining 
amount  of  lien.  Smith  v.  Roberts,  91  N.  Y.  470.  See  Frost  v. 
Yonkers  Savings  Bank,  70  N.  Y.  55;  Hamlin  v.  McCahill, 
Clarke's  Ch.  249.  They  may  be  made  parties  for  the  purpose  of 
ascertaining  amount  of  claim.  Metropolitan  Trust  Co.  v.  T.  V. 
&■  C.  R.  R.  Co.  43  Hun,  521.  A  judgment  creditor  of  the  mort- 
gagor's grantor  cannot  be  made  a  party  for  the  purpose  of  hav- 
ing his  judgment  declared  subsequent  and  subordinate  to  the 
mortgage.      Kettt  v.  PopJiam,  6  Civ.  Pro.  R.  336. 


ARTICLE  III. 

Complaint  and  Notice  of  Pendency  of  Action. 

1631. 

Sub.  I.  Complaint.     §  1629. 

2.  Notice  of  pendency  ok  action.     §  1631. 


^§  1629, 


Sub.  I.   Complaint. 

§  1629.  Complaint  to  state  whether  such  action  brought. 

The  complaint,  in  an  action  to  foreclose  a  mortgage  upon  real  property,  must 
state,  whether  any  other  action  has  been  brought  to  recover  any  part  of  the 
mortgage  debt,  and,  if  so,  whether  any  part  thereof  has  been  collected. 

The  allegation  that  the  defendants  named  have,  or  claim  to 
have,  some  interest  in  or  lien  upon  the  premises  which,  if  any,  is 
subsequent  to  plaintiff's  mortgage,  is  a  sufficient  statement  of  a 
cause  of  action  against  such  defendants.  Drury  v.  Clark,  16 
How.  424;  Frost  V.  Coon,  30  N.  Y.  428.  It  is  said  that  the 
nature  of  the  interest  of  infant  defendants  should  be  stated. 
Aldrich  v.  Lapham,  6  How.  129.  The  complaint  must  allege 
default  in  payment,  and  where  neither  a  default  nor  any  facts  from 
which  it  could  be  inferred  to  exist,  were  alleged  or  set  forth  in 
the  complaint,  it  was  held  demurrable.  Davies  v.  New  York 
Concert  Co.  5  St.  Rep.  21.  If  proceedings  have  been  taken  on 
the  bond,  that  fact  should  be  stated.  See  §  1628.  Lovett  v.  German 
Reformed  Church,  12  Barb.  68.  Demand  of  payment  need  not 
be  averred  where  no  place  of  payment  is  specified  in  the  bond  or 


FORECLOSURE.  357 


Art.  3.     Complaint  and  Notice  of  Pendency  of  Action. 

mortgage,  although  payable  on  demand.  Harris  v.  Muloch,  9 
How.  402 ;  Field  v.  Hazvxhurst,  9  How.  75  ;  Gil/eit  v.  Balcom,  6 
Barb.  370.  Where  the  complaint  alleges  the  giving  of  a  bond, 
there  must  be  an  allegation  of  default  in  the  performance  of  its 
condition.  Coulter  v.  Bower,  64  How.  132.  Where  a  bond  and 
mortgage  is  executed  by  an  executor  or  trustee  and  purports  to 
have  been  executed  in  such  capacity,  it  is  not  necessary  to  allege 
that  the  mortgagor  was,  in  fact,  such  executor  or  trustee  and  the 
facts  as  to  his  appointment ;  otherwise  where  the  action  is  brought 
to  recover  a  debt  due  from  a  testator.      Skelton  v.  Scott,  18  Hun, 

375- 

The  provisions  of  the  statute  requiring  an  heir  or  devisee  taking 

real  estate  subject  to  a  mortgage,  to  pay  the  mortgage,  does  not 
require  any  additional  allegations  in  a  complaint  which  seeks  to 
charge  the  personal  representatives  with  a  deficiency.  Glacius  v- 
Fogel,  88  N.  Y.  439.  An  omission  to  ask  for  judgment  for  defi- 
ciency does  not  convert  the  action  into  a  strict  foreclosure. 
Eqziitable  Life  Ins.  Co.  v.  Stevens,  63  N.  Y.  341.  Where  the 
mortgage  and  bond  were  executed  before  the  enabling  act,  and 
the  only  allegation  is  that  the  husband  and  wife  signed,  judgment 
for  deficiency  cannot  be  taken  against  the  wife.  Manhattan  Life 
Ins.  Co.  v.  Glover,  14  Hun,  153.  It  is  not  necessary  to  allege  in 
the  complaint  the  indebtedness  for  which  the  bond  and  mortgage 
were  given,  and,  if  alleged,  it  need  not  be  proved.  Day  v.  Per- 
kins, 2  Sandf.  Ch.  359.  The  bond  and  mortgage  should  be 
correctly  described  though  a  mere  technical  variance  will  be  disre- 
garded. Hadley  \.  Chapin,  11  Paige,  245.  The  several  assign- 
ments of  the  mortgage  should  be  set  out  in  full.  Thorn  v. 
Desmond,  12  How.  321  ;  Rose  v.  Myer,  7  Civ.  Pro.  R.  219. 

It  is  not  necessary  to  allege  the  recording  of  an  assignment. 
Fryer  v.  Rocker  feller,  63  N.  Y.  268.  See  §  1628  as  to  require- 
ment as  to  allegation  concerning  proceedings  at  law,  and  §  1630 
as  to  when  foreclosure  is  not  maintainable.  A  personal  judg- 
ment cannot  be  had  against  a  party  not  appearing,  unless  asked 
for  in  the  complaint.  French  v.  New,  20  Barb.  484 ;  Bullwinker 
v.  Ryker.  12  Abb.  311  ;  Simonson  v.  Blake,  20  How.  484.  Where 
the  complaint,  in  an  action  of  foreclosure  set  out  the  indebted- 
ness of  the  mortgagors  upon  notes  indorsed  by  them  and  dis- 
counted by  plaintiff,  and  alleged  the  mortgage  was  given  to 
secure  the  payment  of  a  bond,  by  which  the  time  of  payment  of 


358 


FORECLOSURE. 


Art.  3.     Complaint  and  Notice  of  Pendency  of  Action. 

such  indebtedness  was  extended,  and  that  the  obligors  had  failed 
to  comply  with  the  conditions  of  the  bond,  Jicld,  that  the  facts 
constituted  a  cause  of  action.  Troy  City  Bank  v.  Bozvman,  43 
Barb.  639. 

Complaint  in  foreclosure  of  a  mechanic's  lien  which  merely 
alleged  due  notice  to  the  defendant,  etc.,  Iield,  insufificient  on 
demurrer  as  an  allegation  of  law.  KecJiler  v.  Stiitnme,  36  Supr. 
Ct.  337.  Where  a  mortgagor's  wife,  who  did  not  join  in  the 
mortgage,  is  a  party,  and  it  is  not  alleged  that  the  mortgage  is 
superior  to  her  right  of  dower,  she  is  not  barred  of  dower.  Mer- 
chants Bank  V.  Thompson,  55  N.  Y.  7.  A  complaint  in  an  action 
to  foreclose  an  unrecorded  mortgage,  in  which  the  holder  of  a 
prior  mortgage  is  joined  as  defendant,  may  allege  generally  that 
the  latter  has,  or  claims  to  have,  an  interest  in  or  upon  the  mort- 
gaged premises,  or  some  part  thereof,  which,  if  any,  is  subse- 
quent to  the  lien  of  plaintiff's  mortgage ;  no  special  allegations 
are  necessary.  Constant  v.  American  Benevolent,  etc.  Society,  53 
Supr.  Ct.   170. 

A  complaint  alleging  the  making  and  deliveiy  of  the  mortgage, 
the  correctness  of  the  description  and  that  part  of  the  debt  had 
become  due  and  unpaid  together  with  the  other  formal  allega- 
tions required  for  the  purpose  of  foreclosure,  is  sufficient  to  pre- 
sent a  cause  of  action.  Haaren  v,  Lyons,  9  N.  Y.  Supp.  211,  30 
St.  Rep.  416. 

An  omission  to  allege  in  the  complaint  the  assignment  of  the 
bond  as  well  as  of  the  mortgage  does  not  make  a  complaint 
invalid,  especially  when  the  assignment  of  the  mortgage  covers 
that  of  the  bond,  and  is  of  record,  and  a  reference  to  compute 
what  was  due  on  both  had  been  had.  Preston  v.  LoiigJiran,  34 
St.  Rep.  391. 

Where  the  execution  of  a  mortgage  given  to  secure  moneys 
used  to  pay  of?  a  prior  incumbrance  is  denied,  the  holder  of  the 
mortgage  on  foreclosing  may  ask  as  alternative  relief,  that  if  he 
fails  to  establish  its  execution  he  may  be  held  entitled  to  enforce 
the  prior  incumbrance.      Campbell  v.  Campbell,  23  Abb.  N.  C    187. 

Where  a  complaint  sets  forth  an  agreement  by  defendant  that 
a  mortgage  is  a  first  lien,  a  breach  of  that  agreement  states  a  good 
cause  of  action,  although  it  does  not  aver,  in  terms,  that    the  de- 
fendant warranted  the  mortgage  to  be  a  first  lien.      Hyde  v.  Eck 
ler,  20  Week.  Dig.  3 1 . 


FORECLOSURE.  359 


Art.  4.     Answer  and  Defences. 


Allegations  that  the  owner  of  the  equity  of  redemption  con- 
veyed a  part  of  the  mortgaged  premises,  that  the  grantee  retained 
a  sum  to  discharge  the  mortgage,  and  that  the  claim  of  the  money 
so  retained  was  assigned  to  plaintiff,  do  not  set  up  an  independent 
cause  of  action,  but  merely  show  that  the  premises  sought  to  be 
foreclosed  are  primarily  liable  for  the  mortgage  debt.  Wood  v. 
Harper,  85  Hun,  457,  32  Supp.  880,  66  St.  Rep.  160. 

Sub.  2.  Notice  of  Pendency  of  Action.     §  1531. 

§  1631.  Notice  of  pendency  of  action  tc  be  filed 

The  plaintiff  must,  at  least  twenty  days  before  a  final  judgment  directing  a 
sale  is  rendered,  file,  in  the  clerk's  office  of  each  county  where  the  mortgaged 
property  is  situated,  a  notice  of  the  pendency  of  the  action,  as  prescribed  in 
section  1670  of  this  act;  which  must  specify  in  addition  to  particulars  required 
by  that  section,  the  date  of  the  mortgage,  the  parties  thereto,  and  the  time  and 
place  of  recording  it. 

The  requirements  as  to  a  notice  of  pendency  and  its  effect  is 
considered  and  authorities  cited  under  chapter  10,  §§  1670  to  1674, 

ARTICLE  IV. 
Answer  and  Defences. 

Sub.  I.  Answer  generally. 

2.  Counterclaim. 

3.  Tender  as  a  defence. 

4.  Demurrer. 

5.  Relief  granted  defendants. 

Sub.  I.  Answer  Generally. 

A  holder  of  a  tax  deed  cannot  as  a  defendant  defeat  plaintiff's 
title  by  simply  asserting  in  her  answer  that  she  has  or  claims  to 
have  a  title  paramount  and  superior  to  him,  without  showing  what 
that  title  is  and  how  derived.     Ruyter  v.  Reid,  33  St.  Rep.  590. 

Where  the  answer  alleged  the  assignment  to  plaintiff  was  not 
made  bona  fide  but  for  the  purpose  of  preventing  a  defendant  from 
setting  up  a  defence  to  the  mortgage,  to  the  effect  that  plaintiff's 
assignor  prevented  defendant  from  obtaining  possession  of  and 
selling  the  land,  it  was  held  that  the  defence  as  stated  did  not 
import  a  legal  demand  in  favor  of  the  defendant.  Cochrane  v. 
Bauer,  25  St.  Rep.  510. 


360 


FORECLOSURE. 


Art.  4.     Answer  and  Defences. 


As  to  when  actual  and  exclusive  possession  of  part  of  the  premi- 
ses in  another  than  the  mortgagor  is  a  good  defence  to  the  occu- 
pant holding  under  an  unrecorded  title,  see  Bassett  v.  Wood,  29 
St.  Rep.  901;  Phelan  v.  Brady,    119  N.  Y.  587. 

A  purchaser  of  mortgaged  premises  who  takes  the  deed  subject 
to  the  mortgage  is  estopped  from  contesting  the  consideration  or 
validity  of  the  mortgage ;  and  so  long  as  he  remains  in  possession 
of  the  premises  cannot  defend  because  of  failure  of  title.  Mc- 
Conihe  v.  Falcs,  107  N.  Y.  404. 

In  an  action  to  foreclose  for  the  whole  principal  sum  by  reason 
of  failure  to  pay  an  installment,  an  answer  denying  the  non- 
payment of  such  installment  is  not  frivolous.  Gruenstein  v.  Jab- 
lonsky,  I  App.  Div.  580,  37  N.  Y.  Supp.  538,  sub  nom.  Gruen- 
stein V.  Biersack,  73  St.  Rep.  1 54. 

So  a  grantee  of  mortgaged  premises  cannot  avail  himself  of  the 
defence  of  usury;  under  like  circumstances  the  defence  of  usury 
is  personal  to  the  mortgagor.  Golden  v.  Wooster,  10  St.  Rep.  435. 
But  the  defence  of  want  of  consideration  is  available  against  an 
assignee  of  the  mortgage  as  he  stands  in  respect  to  the  security 
in  place  of  the  assignor  although  a  bona  fide  purchaser.  Briggs 
V.  Langford,  107  N.  Y.  680 ;  Hill  v.  Hoole,  116  N.  Y.  299. 

An  answer  alleging  an  agreement  on  the  part  of  one  defendant 
by  which  he  conveyed  the  premises  to  certain  other  defendants 
they  to  advance  money  to  pay  debts  and  interest,  and  to  reconvey 
subsequently  on  repayment  and  also  setting  up  a  breach  of  that 
condition  and  asking  for  specific  performance  of  the  contract, 
was  held  to  be  no  defence  to  the  mortgage  and  that  foreclosure 
should  not  be  delayed  thereby.  Mutual  Life  Ins.  Co.  v.  Cran- 
well,  32  St.  Rep.  376. 

A  denial  by  defendants  that  they  have  or  claim  to  have  an 
interest  in  the  premises  which  accrued  subsequent  to  the  lien  of 
the  mortgage,  is  not  inconsistent  with  the  further  defence  of  pay- 
ment ;  both  defences  may  stand.  Moody  v.  Belden,  38  St.  Rep. 
722.  Nor  is  it  a  defence  that  by  the  terms  of  the  lease,  the  lessor 
had  a  right  to  insist  upon  a  forfeiture  where  the  action  is  to  fore- 
close a  mortgage  upon  the  interest  of  the  lessee  against  the 
latter's  assignee.  Kribbs  v.  Alford,  9  St.  Rep.  617.  It  is  not  a 
defence  to  the  foreclosure  of  a  purchase-money  mortgage  that  the 
original  mortgagee  failed  to  carry  out  an  agreement  made  at  the 
time  to  satisfy  a  judgment  which  was  an  apparent  lien   upon   the 


FORECLOSURE.  361 


Art.  4.     Answer  and  Defences. 


premises  where  no  steps  have  been  taken  to  enforce  such  judg- 
ment and  the  defendants  have  suffered  no  injury  thereby.  Soule 
V.  Dixon,  17  St.  Rep.  360. 

Where  the  proof  showed  that  alleged  alterations  were  made 
prior  to  delivery  and  by  the  draughtsman  who  stood  in  the  rela- 
tion of  stranger  to  the  parties,  a  defence  that  a  mortgage  had  been 
altered  by  changing  the  dates  was  held  insufficient.  Fanning  v. 
Vrooman,  12  St.  Rep.  393.  It  is  no  defence  for  the  wife  who  ex- 
ecutes a  mortgage  on  her  property  to  enable  her  husband  to  ob- 
tain money  to  run  his  business,  that  the  husband,  instead  of 
procuring  moneys  thereon,  delivered  the  mortgage  to  his  credi- 
tors in  settlement  of  his  debt  to  them.  Laidlaw  v.  Slaybeck,  23 
Week.  Dig.  259.  Nor  is  it  a  defence  to  a  wife  who  executes  a 
mortgage  without  specifying  the  purpose  for  which  it  is  to  be 
used,  and  allows  her  husband  to  use  it,  to  claim  upon  his  using  it 
as  collateral  security  for  the  debt  due  from  his  firm,  that  the 
mortgage  was  diverted  from  the  purpose  for  which  it  was  made. 
MacLaren  v.Percival,  102  N.  Y.  675. 

It  is  no  defence  to  an  action  on  a  deficiency  judgment  that  the 
mortgagor  made  a  profit  upon  his  purchase  of  the  mortgaged 
premises.     Schultz  v.  Mead,  8  N.  Y.  Supp.  663,  29  St.  Rep.  203. 

In  an  action  to  foreclose  a  mortgage  held  by  plaintiffs  as 
assignees  for  the  benefit  of  creditors  of  the  mortgagees,  a  defend- 
ant, who  had  purchased  the  premises  subject  to  the  mortgage, 
sought  to  set  off  a  claim  against  plaintiff's  assignors.  It  appeared 
that  at  the  time  of  the  assignment  to  plaintiffs,  the  debt  secured 
by  the  mortgage  was  not  due;  that  the  assignors  were  insolvent 
and  the  party  answering  endeavored  to  have  his  debt,  which  was 
due,  applied  by  them  upon  the  mortgage  before  it  was  assigned. 
Held,  that  he  was  equitably  entitled  to  the  set  off;  that  it  was 
not  necessary  that  the  mortgage  debts  should  have  been  due,  as 
by  seeking  to  have  the  debt  due  him  applied  thereon,  defendant 
treated  it  as  due  and  so  waived  any  defence  he  might  have  based 
upon  the  fact  that  it  was  not  due;  that  he  had  a  right  so  to  do 
and  to  require  the  set  off.     Richards  v.  La  Tourette,  1 19  N.  Y.  54. 

Where  the  Statute  of  Limitations  is  pleaded,  the  burden  is  on 
the  plaintiff  to  show  that  the  last  payment  of  interest  was  made 
within  twenty  years.  United  States  Trust  Co.  v.  Stanton,  y6 
Hun,  32,  27  Supp.  614,  59  St.  Rep.  601. 

An  action  to  foreclose  a  mortgage  may  be  barred  by  the  Stat- 


362  FORECLOSURE. 


Art.  4.     Answer  and  Defences. 


ute  of  Limitations,  although  an  action  can  be  maintained  on  the 
bond  to  which  it  is  collateral.  Fozvlcr  v.  Wood,  78  Hun,  304,  60 
St.  Rep.  176,  28  Supp.  976. 

Misrepresentation  of  the  grantor  as  to  capacity  of  the  water 
power  on  the  demised  premises  furnished  no  defence  to  an  action 
to  foreclose  a  purchase-money  mortgage  where  the  deed  con- 
tained no  covenants  in  relation  thereto,  and  no  fraud  Was  alleged 
or  proved  and  the  grantee  had  been  in  possession  for  four  months 
and  had  an  opportunity  to  ascertain  its  capacity.  DeMilt  v. 
Hill,  89  Hun,  56,  34  Supp.  1060,  69  St.  Rep.  4. 

An  answer  setting  up  title  in  a  third  person  named  is  not  frivo- 
lous, but  shows  a  good  defence.  Fotigera  v.  Moissen,  16  Hun, 
237.  Defendants  are  estopped  by  a  certificate  that  there  is  no 
defence  to  a  mortgage.  WcyJi  v.  Boylan,  23  Alb.  L.  Jour.  513; 
Smyth  v.  Miinroe,  84  N.  Y.  354,  but  see  Wilcox  v.  Hozvcll,  44 
N.  Y.  398.  A  grantee  who  has  assumed  the  mortgage  may  defend 
if  evicted  by  paramount  title.  It  is  not  necessary  for  junior 
incumbrancers,  where  their  rights  are  correctly  stated  in  the  com- 
plaint, to  appear  and  answer  in  order  to  save  their  rights.  Mer- 
chants' Ins.  Co.  W.Marvin,  i  Paige,  557.  But  the  defendants  may 
set  out  their  respective  rights  so  as  to  enable  the  court  to  make  a 
proper  decree  as  to  sale  in  parcels,  and  any  claim  they  have  to 
the  equity  of  redemption.  Tower  v.  White,  10  Paige,  395.  But 
they  cannot  answer  litigating  claims,  as  among  themselves,  to  a 
surplus  which  may  arise  on  the  sale,  unless,  for  some  reason,  it  is 
necessary  to  obtain  a  determination  of  their  respective  rights 
before  sale.  U)tion  Ins.  Co.  v.  Van  Rensselaer,  4  Paige,  85  ;  Field 
V.  MagJiee,  5  Paige,  539. 

In  foreclosure  for  non-payment  of  interest,  whereby  the  prin- 
cipal becomes  due,  it  is  not  a  defence  that  defendant  was  unable 
to  find  plaintiff  to  make  the  payment,  no  trick  or  fraud  being  im- 
puted to  plaintiff.  DwigJit  v.  Webster,  19  How.  349.  It  is  no 
defence  that  the  mortgage  was  for  purchase  money  on  a  convey- 
ance with  warranty,  and  that  a  suit  has  been  commenced  against 
the  mortgagor  or  one  claiming  under  him,  for  a  recovery  of  the 
premises  under  title  paramount  to  that  of  the  mortgagee,  which 
suit  is  pending  and  undetermined.  Piatt  v.  Gilchrist,  3  Sandf. 
118.  A  breach  of  covenant  of  seizin,  like  a  breach  of  covenant 
of  warranty,  is  not,  without  eviction  or  disturbance,  a  defence  to 
an  action  to  foreclose  a  purchase-money  mortgage.     Farnani  v. 


FORECLOSURE.  363 


Art.  4.     Answer  and  Defences. 


Hotc/ikiss,  2  Keyes,  9;  Curtis  v.  Bush,  39  Barb.  661.  A  grantee 
as.suming  a  mortgage  is  estopped  from  denying  its  existence  and 
validity.  Hailc  v.  Nichols,  16  Hun,  37.  But  in  Boivcry  Savings 
Bank  V.  Drake,  i  Law  Bull,  89,  it  was  held,  that  where  a  grantee 
took  property  subject  to  a  mortgage,  which  he  assumed,  but 
nothing  was  said  about  payment  of  it,  or  its  being  part  of  the 
consideration,  that  an  answer  setting  up  these  facts  could  not  be 
regarded  as  frivolous.  On  foreclosure  of  a  purchase-money  mort- 
gage a  defendant,  against  whom  no  personal  claim  was  made, 
alleged  a  purchase  by  him  from  plaintiff's  grantee,  and  that  he  was 
the  assignee  of  plaintiff's  covenants  of  warranty  and  against 
incumbrances,  and  had  been  evicted  by  a  paramount  title,  under 
certain  taxes  which  were  incumbrances  at  time  of  plaintiff's  grant. 
Held,  that  these  facts  did  not  constitute  either  a  defence  or  coun- 
terclaim. National  Fire  Ins.  Co.  v.  McKay,  21  N.  Y.  191.  Upon 
the  foreclosure  of  a  purchase-money  mortgage  simultaneously 
with  a  conveyance  by  the  mortgagees,  who  were  executors,  con- 
taining no  covenants,  except  against  grantors,  it  is  no  defence 
that  the  property  was  at  the  time  covered  by  an  incumbrance  not 
existing  through,  or  by  reason  of,  any  act  of  or  omission  speci- 
fied in  the  covenant.     Sanford  v.   Travers,  40  N.  Y.  140. 

When  the  complaint  alleged  that  no  proceeding  had  been  taken 
at  law,  it  was  held  that  a  plea  that  the  plaintiff  recovered  a  judg- 
ment at  law  for  the  same  debt  was  valid,  although  containing  no 
averment  that  an  execution  had  issued  on  such  judgment  and 
been  returned  unsatisfied.  North  River  Bank  v.  Rogers,  8  Paige, 
648.  A  purchaser  of  mortgaged  premises,  who  takes  a  deed  sub- 
ject to  the  mortgage  and  assumes  and  agrees  to  pay  the  same,  is 
estopped  from  contesting  its  consideration  or  validity ;  and  where 
the  mortgage  was  given  by  his  grantor  for  purchase  money,  such 
grantee,  so  long  as  he  remains  in  possession  of  the  premises,  can- 
not defend  against  the  mortgage  because  of  failure  of  title.  Par- 
kinson V.  Sherman,  74  N.  Y.  88.  A  defence  of  defect  of  title, 
which  does  not  aver  eviction,  is  frivolous.  Parkinson  v.  Sherman, 
74  N.  Y.  88;  Parkinson  v.  Jacobson,  13  Hun,  317. 

Where  a  complaint  sets  forth  the  execution  of  a  bond,  and  avers 
the  execution  of  a  mortgage,  with  the  same  condition  as  the  bond, 
an  answer  which  merely  repeats  the  words  of  the  condition,  as 
stated  in  the  complaint,  and  avers  that  it  is  not  contained  in  the 
mortgage,  is  not  a  denial  that  such  was,  in  substance,  the  condi- 


3^4 


FORECLOSURE. 


Art.  4.     Answer  and  Defences. 


tion  of  the  mortgage.     Dimon  v.  Dann,    15    N.  Y.  498.     In    an 
action  brought  by  the  assignee  of  a  mortgage,  the  mortgagor  has 
the   right   to   aver  and   prove   a   mistake   in   the   drawing  of  the 
instrument  and  have  the  same  reformed.     Andrews  v.  Gillespie, 
47  N.  Y.  487.     A  defendant  in   foreclosure  who  has  guaranteed, 
in  an  assignment  of  a  bond  and   mortgage,  its  payment  by  due 
foreclosure  and  sale,  may  set  forth  as  a  defence  that  the  guaranty 
was  without  consideration,  though  there  was  consideration  for  the 
assignment.      Vandcrbilt  v.  Schryver,  91    N.  Y.   392.      Defendant 
may  plead  that  plaintiff    procured  an  assignment  of  the  mortgage 
by  fraud,  and  that  the  debt  has  been  paid  to  the  mortgagee  and 
a  release  given.     Hall  v.  Erwin,  57  N.  Y.  643.     Where  plaintiff 
claims  under  an  assignment,  made  as  security  for  an  illegal  trans- 
action, the  illegality  is  a  valid  defence.     Deivitt  v.  Brisbane,  16 
N.  Y.  508.     A  purchaser  who  has  assumed  a  mortgage  cannot  set 
up  usury.     Hartley  v.  Harrison,  24  N.  Y.  170.     A  mortgagor  can- 
not set  up  a  defect  in  his  title.     Dime  Savings  Bank  v.  Crook,  29 
Hun,  671.      He  may  set  up  payments  to  the  mortgagee    without 
notice  of  an  assignment.      Van  Keuren  v.  Corkins,  4  Hun,    129. 
On  foreclosure  of  a  purchase-money  mortgage,  an  answer  is  suffi- 
ciently definite  which  alleges  fraud  in  the  sale  of  the  premises  as 
to  the  lien  of  a  judgment  thereon,  and  demands  judgment  or  a 
cancelation  of  the  mortgage  and  recovery  of  the  money  paid,  or 
that  the  amount  of  the  judgment  be  deducted   from   the  mort- 
gage.    Lyke  v.Post,  65  How.  298.     A  mortgage  is  not  negotiable 
and  subject  to  defences  existing  between  the  original  parties;  an 
assignee  takes  subject  to  the  equities  between  the  parties.     Ingra- 
hani  V.  Disborough,  47  N.  Y.  421  ;  Schafer  v.  Reilly,  50  N.  Y.  61  ; 
Andrews  v.   Gillespie,  47   N.  Y.  487;   Unioji   College  v.  Wheeler, 
61  N.  Y.  88;  Davis  v.  Bechstein,  69  N.  Y.  440.     A  defendant  who 
sets  up  an  equitable  title  against  a    mortgagee  without   actual 
notice,  in  order  to  affect  the  latter  with  constructive  notice  by  his 
possession  at  the  date  of  the  mortgage,  should  allege  that  he  was 
then  in  possession  claiming  the  land  as  his  own.      It  is  not  enough 
to  allege  that  he  was  in  possession  at  and  long  before  the  execu- 
tion of  the  mortgage.     N.  Y.  Life  Ins.  Co.  v.  Cutler,  3  Sandf.  Ch. 
177. 

A  warranty  of  the  validity  of  a  mortgage  is,  in  effect,  a  war- 
ranty of  the  validity  of  the  bond,  and  if  the  bond  is  invalid  its 
invalidity   invalidates  the    mortgage,  being    the    principal    debt. 


FORECLOSURE.  365 


Art.  4.     Answer  and  Defences. 


Ross  V.  Terry,  63  N.  Y.  613.  A  deficiency  in  the  quantity  of  land 
purchased  is  no  defence  to  a  purchase-money  mortgage  if  there  is 
no  fraud.  Northrup  v.  Siimney,  27  Barb.  196.  An  answer  that 
the  mortgage  is  not  binding,  and  no  lien  on  the  premises  is  a 
statement  of  a  conclusion  unsupported  by  facts,  and  unavailing. 
Caryl  v.  William,  7  Lans.  416.  A  subsequent  incumbrancer 
cannot  set  up  that  the  conditions  of  the  bond  are  not  in  the  mort- 
gage. Kay  V.  Whittaker,  44  N.  Y.  565.  An  allegation  of  a  con- 
spiracy to  prevent  defendant  from  raisingmoney  to  pay  the  mort- 
gage, and  that  the  assignment  to  plaintiff  was  made  from 
malicious  motives,  is  frivolous.     Morris  v.  TutJiill,  72  N.  Y.  575. 

If  defendants  on  foreclosure  of  a  junior  mortgage  answer  so  as 
unnecessarily  to  increase  the  costs,  they  may  be  charged  with 
costs.  Bar7iardv.  Bruce,  21  How.  360.  An  admission  of  a  bond 
and  mortgage,  as  alleged  in  the  complaint,  is  not  an  admission  of 
the  payment  of  insurance  premiums  by  plaintiff  as  therein  alleged. 
Fellows  \.  Midler,  38  Super.  Ct.  137,  Where  a  defendant  in  fore- 
closure pays  the  amount  of  the  mortgage,  but  not  the  costs,  and 
sets  up  such  payment  by  answer,  the  answer  cannot  be  stricken 
out  as  sham.  Wetrnore  v.  Gale,  2  Week.  Dig.  408.  Where  the 
due  acknowledgment  of  a  mortgage  is  admitted  by  the  answer, 
the  defendant  cannot  show  that  the  mortgagor,  a  married  woman, 
was  not  examined  apart  from  her  husband.  Meeker  v,  Wright, 
76  N.  Y.  262. 

An  answer  which  admits  the  taking  of  the  mortgage  as  security 
for  a  debt  admits  the  cause  of  action,  and  a  denial  of  the  remain- 
ing allegations  is  considered  as  a  mere  legal  conclusion,  and  puts 
nothing  in  issue.  Kay  v.  Churchill,  10  Abb.  N.  C.  83.  Where 
the  answer  alleged  a  tender  of  specified  amount,  Jield,  that,  as  it 
needed  only  a  computation  to  ascertain  whether  it  was  sufificient, 
no  trial  was  necessary.  Eaton  v.  Wells,  82  N.  Y.  576.  An 
answer  which  merely  denies  the  allegation  of  the  complaint  that 
defendants  were  in  default  of  a  sum  alleged  to  have  been  due  at 
a  certain  date  as  interest,  states  a  conclusion  of  law  merely,  and 
is  frivolous.  Excelsior  Savings  Bank  v.  Campbell,  4  T.  &  C.  549, 
afifirmed,  62  N.  Y.  ^ij. 

Where  the  complaint  alleged  the  assignment  of  the  bond  and 
mortgage,  an  answer  not  taking  issue  on  this  allegation,  but  aver- 
ring plaintiff  was  not  the  real  party  in  interest,  and  that  the  bond 
and  mortgage  were  still  owned  by  an  intermediate  assignee,  admits 


366 


FORECLOSURE. 


Art.  4.     Answer  and  Defences. 


the  sufficiency  of  the  as.signment,  and  does  not  avail  to  allow 
defendant  to  rely  on  the  objection  that  the  mesne  assignment 
proved  did  not  purport  to  assign  the  bond.  Sivcr  v.  Wheeler,  3 
Week.  Dig.  482. 

A  defendant  setting  up  that  the  mortgage  is  void  for  usury  can- 
not, between  plaintiff  and  a  co-defendant,  compel  an  amendment 
of  the  complaint  for  the  purpose  of  setting  forth  the  transaction, 
but  may  be  protected  by  litigating  with  his  co-defendant.  Nei- 
man  v.  Dickson,  1  Abb.  N.  C.  307.  If  the  holder  of  a  mortgage 
has  refused  to  receive  interest,  except  upon  condition  that  taxes 
that  he  had  paid  be  reimbursed,  and  if  the  effect  of  so  doing  was 
to  waive  the  tender  of  the  money  due  on  the  mortgage,  the  defend- 
ants in  foreclosure  must  set  up  these  facts  in  their  answer,  and 
allege  the  tender.      Sidcnbergv.  Ely,  90  N.  Y.  257. 

An  answer  tendered  by  a  defendant  in  foreclosure  can  only  be 
the  basis  of  the  determination  of  the  rights  of  the  defendants  be- 
tween themselves,  in  a  case  where  they  have  appeared  and 
answered,  in  reference  to  a  claim  made  against  them  by  plaintiff, 
and  as  part  of  the  adjustment  of  that  claim,  and  where  an  issue  is 
formed  upon  the  facts  involved  in,  and  brought  out  on  the  litiga- 
tion and  investigation  of  that  claim.  Lansing  v.  Hadsall,  26 
Hun,  619. 

Where  a  person  claiming  a  Hen  prior  to  plaintiff  is  made  a 
party,  it  is  not  necessary  for  him  to  set  up  his  rights  by  answer. 
Payne  v.  Grant,  23  Hun,  134;  Frost  v.  Koon,  30  N.  Y.  428;  Rath- 
bone  V.  Hooncy,  58  N.  Y.  463  ;  Leiois  v.  Smith,  9  N.  Y.  502 ;  Mer- 
cJiants  Bank  v.  Thompson,  55  N.  Y.  7;  Emigrant  Savings  Bank, 
etc.  V.  Goldman,  75  N.  Y.  127.  But  a  prior  mortgagee  who  is  a 
defendant,  and  holding  a  junior  lien,  may  answer  in  the  action, 
and  ask  to  have  the  prior  mortgage  paid  out  of  the  proceeds  of 
the  sale,  before  applying  any  portion  of  the  proceeds  to  the  pay- 
ment of  plaintiff's  mortgage.  Metropolitan  Trust  Co.  v.  Tona- 
luanda,  etc.  R.  R.  T^.  43  Hun,  521  ;  Doctor  v.  Smith,  16  Hun,  245. 
It  is  a  matter  of  common  practice  to  determine  the  priority  in 
which  different  parcels  shall  be  sold  to  pay  the  mortgage  debt. 
^V.  Y.  Life  Lns.  Co.  v.  Milnor,  i  Barb.  Ch.  353, 

Fraud  is  a  good  defence  when  it  is  shown  that  it  was  practiced 
by  the  mortgagee,  or  his  agents,  upon  the  mortgagor,  or  when 
the  mortgagee,  or  his  assignees,  at  the  time  of  taking  the 
mortgage  was  aware  of  the  fraud.     Aiken  v.  Morris,  2  Barb.  Ch. 


FORECLOSURE.  367 


Art.  4.     Answer  and  Defences. 


140 ;  Reedv.  Latson,  15  Barb.  9;  CJianiplin  v.  Laytin,  6  Paige,  189; 
Abbott  V.  Allen,  2  Johns.  Ch.  519;  Knickerbocker  Life  Ins.  Co.  v. 
Nelson,  13  Hun,  321.  As  to  who  may  set  up  the  defence  of 
usury.  Fanning  V.  DunJiani,  5  Johns.  Ch.  122;  WJieatonv.  Voorhis, 
53  How.  3-19;  Bard  v.  Fort^  3  Johns.  Ch.  632;  Post  v.  Dart,  8 
Paige,  639;  Books  v.  Avery,  4  N.  Y.  225;  Thompson  v.  Van 
Vechten,  27  N.  Y.  568.  One  who  has  purchased  land  subject  to 
a  mortgage,  the  amount  of  which  is  made  part  of  the  consideration 
of  the  purchase,  cannot  set  up  usury  whether  he  assumed  payment 
of  the  mortgage  or  not.  Hartley  v.  Harrison,  24  N.  Y.  170;  Sands 
V.  Church,  6  N.  Y.  347;  Hardin  v.  Hyde,  40  Barb.  435;  Morris 
V.  Floyd,  5  Barb.  130;  Freeman  v.  Auld,  44  N.  Y.  50 ;  Merchayits 
ExcJiange  Bank  v.  Commercial,  etc.  Co.  49  N.  Y.  635.  A 
mortgagor  may  be  estopped  from  setting  up  usury,  by  affidavit  or 
certificate  that  the  mortgage  is  vaHd.  Real  Estate  Trust  Co.  v. 
Rader,  53  How.  231  ;  Smyth  v.  Lombardo,  15  Hun,  415;  Smyth 
V.  Munro,  84  N.  Y.  354.  A  defendant  may  set  up  any  defence 
which  shows  the  plaintiff  not  entitled  to  judgment  of  foreclosure 
as  payment,  or  that  time  for  payment  has  been  extended,  or  want 
of  consideration  or  usury.  Prouty  v.  Price,  50  Barb.  344;  Prouty 
V.  Eaton,  ^\  Barb.  409;  Banks  v.  Walker,  2  Sandf.  Ch.  344;  Dodge 
V.  Crandall,  30  N.  Y.  294;  Mutual  Life  Ins.  Co.  v.  Bozven,  47  Barb. 
618;    Thompson  v.  Van  Vechten,  27  N.  Y.  568. 

It  is  not  a  defence  that  there  are  defects  in  title  where  the 
mortgage  is  for  the  purchase  money,  if  there  has  been  no  eviction, 
and  no  fraud  is  alleged.  Ed^aards  v.  Bodine,  26  \N end.  109;  Tall- 
inadge  v.  Walles,  25  Wend.  107;  Banks  v.  Walker,  3  Barb.  Ch. 
438;  Burke  V.  Nichols,  2  Keyes,  670 ;  Parker  son  v.  Jaeobson,  13 
Hun,  317;  Parkinson  v.  Sherman,  74  N.  Y.  88;  Ryersonv.  Willis, 
81  N.  Y.  277.  He  may,  however,  defend  on  that  ground  if  kept 
out  of  possession,  or  surrenders  to  paramount  title  or  after  judg- 
ment of  eviction.  Withers  v.  Powers,  2  Sandf.  Ch.  350 ;  York  v. 
Allen,  30  N.  Y.  104;  Coudry  v.  Coit,  44.  N.  Y.  382;  Simers  v. 
Saltus,  3  Den.  214;  Dyett  v.  Pendleton,  8  Cow.  727.  The  mort- 
gagee may  be  estopped  by  his  declarations  from  setting  up  an 
otherwise  valid  defence.  Hoefflcr  v.  Westeott,  15  Hun,  243;  John- 
son V.  Parmely,  14  Hun,  398;  Norris  v.  Wood,  14  Hun,  196. 

A  defence  to  the  foreclosure  of  a  purchase-money  mortgage  on 
the  part  of  the  mortgagor,  alleged  to  have  existed  at  the  time  of 
its  inception,  can  only  arise  where   fraud   has  been  practiced   by 


368 


FORECLOSURE. 


Art.  4.     Answer  and  Defences. 


the  mortgagee  in  procuring  its  execution,  or  there  is  a  failure  of 
consideration.  When,  therefore,  the  purchaser  is  in  undisturbed 
possession  of  the  land,  he  cannot,  in  the  absence  of  fraud,  resist 
the  foreclosure  simply  on  the  ground  of  defect  of  title.  McConihe 
V.  Fales,  107  N.  Y.  404. 

Sub.  2.  Counterclaim. 

A  set-off  may  be  allowed,  but  it  must  be  of  a  debt  due  and 
payable  at  the  commencement  of  the  action.  Holden  v.  G"?'/- 
^^r/,  7  Paige,  208.  But  demands  purchased  after  the  commence- 
ment of  the  suit  cannot  be  set  off.  Knapp  v.  BiirnJiam,  1 1  Paige, 
330.  When,  simultaneously  with  giving  of  a  conveyance  and  pur- 
chase-money mortgage  and  as  part  of  the  same  transaction,  a 
written  agreement  is  made  as  to  the  erection  of  buildings 
thereon  by  the  purchaser,  and  a  release  of  certain  portions  from 
the  lien  of  the  purchase-money  mortgage,  damages  sustained  from 
the  breach  of  any  express  or  implied  covenant  in  the  agreement 
may  be  counterclaimed.  Sanford  v.  Travers,  40  N.  Y.  140. 
On  foreclosure  of  a  mortgage,  given  by  principal  with  a  joint  bond 
to  secure  it,  where  a  deficiency  judgment  is  sought  against 
both  obligors,  they  may  counterclaim  a  debt  due  the  mort- 
gagor or  principal  debtor.  Artcherv.  Douglass,  5  Den.  509;  Bray 
V.  Ransoui,  12  N.  Y.  466;  Bathgate  v.  Haskin,  59  N.  Y. 
533.  A  defendant  whose  liability  is  not  in  question  and  who  dis- 
claims all  interest  in  the  mortgaged  premises,  cannot  demand  a 
judgment  against  plaintiff  on  a  contract.  National  Fire  Ins.  Co.  v. 
McKay,  21  N.  Y.  191.  On  foreclosure  of  a  mortgage  executed 
by  defendant  to  plaintiff's  testator  to  secure  a  payment  agreed  to 
be  made  in  a  specified  time  after  such  testator's  death,  a  debt 
due  defendant  from  the  testator,  in  his  lifetime,  cannot  be  set  ofif, 
but  the  funeral  expenses  paid  by  defendant  can  be.  Patterson  v. 
Patterson,  59  N.  Y.  574. 

A  purchaser  of  land  subject  to  a  mortgage,  cannot  set  up  as  a 
counterclaim,  or  by  way  of  recoupment,  a  fraud  practiced  on  him 
by  the  mortgagor  after  the  mortgage  was  given.  Reed  v.  Latson, 
15  Barb.  9.  A  defendant  who  is  personally  liable  for  the  debt,  or 
whose  land  is  bound  by  the  lien,  may  plead  a  counterclaim.  Lath- 
rop  V.  Godfrey,  3  Hun,  739.  If  the  mortgagee  is  guilty  of  a 
fraud  on  the  mortgagor,  the  latter  may  counterclaim  his  damages 
resulting  therefrom.     Abbott  v.  Allen,  2  Johns.  Ch.  519;  Greene  v. 


FORECLOSURE.  369 


Art.  4.     Answer  and  Defences. 


Tallman,  20  N.  Y.  191  ;  Ludington  v.  Slaiison,  38  Super.  Ct.  81. 
As  to  what  are  proper  counterclaims,  McLanc  v.  Gccr,  3  Edw.  Ch. 
245;  Bernheimcr  v.  Willis,  11  Hun,  16;  Holdcn  v.  Gilbert,  7 
Paige,  208.  An  allegation  of  usury  and  demand  for  cancellation 
of  bond  and  mortgage,  is  not  a  counterclaim.  Barthet  v.  Elias, 
2  Abb.  N.  C.  364;  Equitable  Life  Ins.  Co.  v.  Cuyler,  12  Hun,  247, 
afifirmed,  75  N.  Y.  511.  And  an  allegation  that  a  mortgage  is  in- 
valid for  any  reason  does  not  call  for  a  reply.  Agate  v.  King,  17 
Abb.  159;  Caryl  V.  Williams,  7  Lans.  416;  Bates  v.  Rosekrans^  37 
N.  Y.    409;    Vassear  v.  Livingston,  13  N.  Y.  249. 

Where  a  prior  mortgage  was  made  to  a  defendant  in  the  fore- 
closure, his  claim  to  foreclose  his  mortgage  is  available  as  a 
counterclaim.  Metropolitan  Trust  Co.  v.  Tonaivanda,  etc.  R.  R. 
Co.  43  Hun,  521  ;    s.  c.  7  St.  Rep.  90,  18  Abb.  N.  C.  368. 

In  an  action  to  foreclose  a  purchase-money  mortgage,  in  which 
judgment  for  deficiency  was  demanded,  breach  of  the  covenant 
of  seizin  in  a  deed  to  defendant  may  be  set  up  as  a  counterclaim. 
Merritt  v.  Gouley,  35  St.  Rep.  277. 

It  is  said  in  the  opinion  in  Keeler  v.  Keeler,  102  N.  Y.  page  30, 
which  was  an  action  of  foreclosure,  that  the  plaintiff  had  the  right 
to  give  evidence  on  the  trial,  for  the  purpose  of  avoiding  new 
matter  set  up  as  a  defence,  of  any  facts  which  might  have  been 
pleaded  by  way  of  reply,  when  that   pleading  was  not  used. 

Sub.  3.   Tender   as  a   Defence. 

Kortright  v.  Cady,  21  N.  Y.  343,  is  authority  for  the  rule  that 
tender  of  the  amount  due  upon  a  mortgage  discharges  the  lien 
though  made  after  the  moneys  became  due  and  need  not  be  kept 
good.  This  case  has  been  criticized  from  time  to  time  and  kept 
within  very  narrow  limits,  but  has,  nevertheless,  been  followed  up 
to  this  time.  The  rule  with  regard  to  the  manner  in  which  the 
tender  must  be  made  and  the  evidence  is,  however,  held  very 
strictly.  It  was  said  in  the  early  case  of  Wood  v.  Hitchcock,  20 
Wend.  49,  that  interlarding  any  other  object  would  always  defeat 
the  effect  of  the  act  as  a  tender.  It  was  held  that  the  demand  of 
a  receipt  would  vitiate  the  tender  in  Ryder  v.  Toivnsend,  7  Dowl, 
&  Ryl.  and  also  2  Phillips  on  Evidence,  7th  ed.  134. 

In  Rosevelt  v.  BulF s  Head  Bank,  45  Barb.  583,  it  is  said  that  the 
plaintiff  on  tender  was  not  bound  to  sign  a  satisfaction  piece; 
that  the  money  should  be  tendered    irrespective  of  any  other  act. 
[Special  Actions  —  24.] 


370  FORECLOSURE. 


Art.  4.     Answer  and  Defences. 


In  Tuthillv.  Morris,  81  N.  Y.  94,  it  is  said,  "  in  view  of  the  seri- 
ous consequences  resulting  from  the  refusal  of  such  a  tender,  the 
proof  should  be  very  clear  that  it  was  fairly  made  and  delivered 
and  intentionally  refused  by  the  mortgagee  or  some  one  duly 
authorized  by  him,  and  that  sufficient  opportunity  was  given  to 
ascertain  the  amount  due ;  at  all  events,  it  should  appear  that  a 
sum  was  absolutely  and  unconditionally  tendered  sufficient  to 
cover  the  whole  amount  due.  The  burden  of  that  proof  is  on 
the  party  alleging  the  tender." 

To  the  same  effect,  Day  v.  Strong,  29  Hun,  505,  and  in  Harris 
V.  Jex,  66  Barb.  232,  it  was  held  that  the  right  to  tender  the  money 
due  so  as  to  discharge  the  lien  was  personal  to  the  mortgagor, 
and  that  an  assignee  of  the  mortgage  was  not  in  a  position  to  avail 
himself  of  the  rights  given  him  in  Kortriglit  v.  Cady.  On  the 
appeal,  55  N.Y.  421,  Judge  Andrews,  in  the  opinion  of  the  court, 
said  :  "We  deem  it  unnecessary  to  consider  whether  there  is  such 
a  distinction  between  the  facts  in  this  case  and  those  which 
appear  in  Kortright  v.  Cady,  as  to  call  for  the  application  of  a 
different  rule  in  respect  to  the  legal  effect  of  the  tender  made  by 
the  defendant  there,  that  applied  in  that  case."  Harris  v.  Jex, 
66  Barb.  232,  supra,  is  cited  with  approval  in  Noyes  v.  Wyckoff, 
30  Hun,  466,  which  was  affirmed  1 14  N.  Y.  204,  without  reference 
to  this  point.  See,  however,  upon  this  point.  Frost  v.  Yonkers 
Savings  Bank,  70  N.  Y.  553,  which  was  assumed  to  intimate  a 
different  view  from  that  held  in  Harris  v.  Jex.  Where  affirma- 
tive relief  is  asked  by  a  defendant,  such  as  the  cancellation  of  the 
mortgage,  the  tender  must  be  kept  good  as  in  other  actions.  Tiit- 
Jiill  V.Morris,  81  N.Y.  94;  Breiinich  v.  Wcsclnian,  100  N.Y.  609; 
Wcr7ier  v.  Tiich,  23  St.  Rep.  683;  S.  C.  52  Hun,  259;  Nelson  v. 
Loder,  28  St.  Rep.  635,  are  authority  for  this  rule. 

In  Halpin  v.  Phenix,  118  N.  Y.  165,  which  was  an  action  to 
compel  the  defendant  to  execute  and  deliver  to  the  plaintiff  a 
satisfaction  of  the  mortgage,  it  was  held  that  where  there  is  no 
dispute  as  to  the  amount  of  a  debt,  a  tender  may  always  be 
restricted  by  such  conditions,  as  by  the  terms  of  the  contract, 
the  debtor  on  payment  has  a  right  to  insist  upon,  and  to  which 
the  creditor  has  no  right  to  object,  that  a  mortgagor,  therefore, 
has  a  right  to  attach  as  a  condition  of  payment  of  the  money 
secured,  that  the  owner  execute  a  satisfaction  of  the  mortgage. 
A   tender   to    be    effectual    for  the  purpose  of  stopping  interest 


FORECLOSURE.  3/ 


Art.  4.     Answer  and  Defences. 


and  preventing  costs  must  be  kept  good  by  the  debtor  and  when- 
ever he  seeks  to  make  it  the  basis  of  affirmative  reHef,  it  must  be 
paid  into  court  so  that  the  creditor  may  get  the  money  and  that 
fact  must  be  alleged  in  the  pleading.  Where,  however,  no 
objection  is  taken  by  the  pleading,  and  the  failure  to  allege  pay- 
ment into  court,  the  act  maybe  performed  on  the  trial,  but  in  the 
absence  of  any  objection  then  taken,  the  presumption  on  appeal 
is  that  it  was  performed. 

In  Nelson  v.  Loder,  132  N.  Y.  288,  Follett,  Ch.  J.,  speaking  for 
the  court,  discusses  the  question  of  tender  and  holds,  citing 
Kortright  v.  Cccdy,  21  N.  Y.  343,  and  other  authorities,  that  in 
case  the  whole  amount  secured  by  the  mortgage  is  due,  the  ten- 
der of  the  sum  unpaid  by  the  owner  of  the  mortgaged  premises, 
extinguishes  the  lien  of  the  mortgage  although  the  tender  is  not 
kept  good,  but  it  does  not  discharge  the  promise  or  covenant  to 
pay  the  debt  for  which  the  debtor  remains  liable.  Further,  that 
if  a  debtor  wishes  to  extinguish  his  liability  for  subsequently 
accruing  interest  or  demand  some  affirmative  relief,  he  cannot 
retain  the  money  subject  to  his  own  use,  but  must  devote  it  to 
the  specific  purpose  of  paying  the  debt  and  puts  it  within  the 
power  of  the  creditor  to  receive  it  at  any  time ;  he  must  keep  his 
tender  good  ;  a  subsequent  lienor's  right  to  redeem  a  prior  secu- 
rity is  derived  from  the  owner  of  the  mortgaged  premises,  and  he 
is  in  this  respect  in  no  better  position  than  the  owner,  and  his 
tender,  if  he  wishes  to  stop  interest  or  compel  an  assignment  of 
the  prior  lien,  must  be  as  absolute  and  specific  as  that  which 
the  owner  is  required  to  make  as  a  ground  for  affirmative  relief 
or  to  stop  the  running  of  the  interest. 

Sub.  4.   Demurrer. 

Where  plaintiff  brought  foreclosure  individually,  and  as  admin- 
istratrix, to  foreclose  a  mortgage  given  by  a  person  of  whom  she 
was  also  administratrix,  and  made  herself  a  party  defendant  in 
that  capacity,  held,  that  the  fact  that  she  was  named  as  defendant 
did  not  prejudice  the  other  defendants  and  was  not  a  valid  ground 
of  demurrer.      Biirtis  v.  Burtis,  39  St.  Rep.  637. 

A  complaint  in  an  action  to  foreclose  a  mortgage  executed  by 
a  trustee,  is  not  demurrable  on  the  ground  that  the  cestui  que 
trust  was  not  made  a  party.  He  is  a  proper  but  not  ordinarily  a 
necessary  party.    Harlem,  etc.  Association  v.  Quinn,  32  St.  Rep.  909. 


372  FORECLOSURE. 


Art.  4.     Answer  and  Defences. 


Sub.  5.   Relief  Granted  Defendants. 

Defendants  who  do  not  set  up  any  equities  against  plaintiffs 
should  not  be  allowed  to  litigate  between  themselves,  before  judg- 
ment, the  question  of  their  priorities  of  right  in  the  fund,  or  their 
equities,  but  plaintiff  should  have  the  usual  judgment.  Swart  v. 
Bement,  4  Abb.  Ct.  App.  Dec.  253.  Defendants  cannot  settle 
their  rights  as  between  themselves  until  after  the  entry  of  judg- 
ment unless  those  rights  grow  directly  out  of  the  claim  made  by 
the  plaintiff,  and  consist  in  qualifying  the  rights  of  the  plaintiff 
as  against  the  defendants.  Mcaman  v.  Dickso7i,  i  Abb.  N.  C.  307  ; 
Miller  v.  Case,  Clarke's  Ch.  395.  If  an  issue  is  raised  by  one  de- 
fendant against  any  other  defendant,  the  answer  must  be  duly 
served  on  the  co-defendant  to  be  available.  Meigs  v.  Willis,  66 
How.  466.  No  question  of  title  adverse  to  the  mortgagor  can  be 
litigated  in  an  action  to  foreclose,  and  the  only  effect  of  a  judg- 
ment therein  is  to  vest  in  the  purchaser  the  title  of  the  mortgagor 
at  the  time  of  making  the  mortgage.  Bowery  Savings  Bank  v. 
Foster,  1 1  Week.  Dig.  493  ;  Dime  Savings  Bank  v.  Crook,  29  Hun, 
671  ;  Rathbone  v.  Hooney,  58  N.  Y.  463;  Merchants'  Bank  v. 
Thompson,  55  N.  Y.  7;  Meigs  v.  Willis,  66  How.  466;  Emigrant, 
etc.  Bank  v.  Goldman,  75  N.  Y.  127;  Emigrant,  etc.  Bank  v. 
Clute,  33  Hun,  82  ;  Corning  v.  Smith,  6  N.  Y.  82 ;  Lezvis  v.  Smith, 
9  N.  Y.  502;  Baker  v.  Bnrton,  6'j  Barb.  458;  Lee  v.  Parker,  43 
Barb.  611.  The  validity  of  a  trust  deed  executed  prior  to  the 
execution  of  the  mortgage  cannot  be  tried  in  foreclosure.  Helck 
V.  Reinheimer,  23  Week.  Dig.  473.  A  mistake  occurring  by  acci- 
dent, fraud  or  otherwise,  must  be  corrected  in  an  action  on  satis- 
factory proof  being  made.  Gillespie  v.  Moon,  2  Johns.  Ch.  585  ; 
Andrews  v.  Gillespie^  47  N.  Y.  487.  And  a  defendant  may  have 
a  covenant  struck  out  of  a  deed  binding  him  personally  for  the 
debt.  Albany  City  Bank  v.  Burdick,  87  N.  Y.  48.  It  is  proper  to 
determine  in  foreclosure  a  controversy  between  plaintiff  and  the 
grantee  of  the  mortgagor,  as  to  the  right  of  the  latter  to  remove  an 
erection  from  the  land,  and  if  the  right  is  established,  the  court 
may  protect  it  in  the  judgment  by  ordering  sale  subject  to  the  right 
of  authorizing  removal  before  sale.  Brown  v.  Kceney  Settlement 
Cheese  Association,  59  N.  Y.  242.  A  purchaser  at  a  tax  sale  made 
subsequent  to  the  mortgage  may  litigate  the  question  as  to  the 
priority  of  his  lien.     Roosevelt  Hospital  v.  Dowley,  57  How.  489. 


FORECLOSURE.  373 


Art.  5.     Matters  of  Practice. 


ARTICLE  V. 
Matters  of  Practice.    §§  1628,  1630. 

Sub.  I.  Service  personal  and  by  publication. 

2.  Notice  of  no  personal  claim. 

3.  Guardian  ad  litem  for  infant  defendant. 

4.  Miscellaneous  rules  and  regulations. 

5.  No   other    action  to   be    brought  without  leave  of   the  court. 

§§  1628,  1630. 

6.  Receiver,  when  appointed,  powers  and  duties. 

7.  Costs. 

Sub.  I.   Service  Personal  and  by  Publication. 

If  afifidavits  upon  which  an  order  for  service  of  the  summons  in 
an  action  for  foreclosure  by  publication  is  sought,  state  facts  tend- 
ing to  show  that  the  defendant  had  become  and  is  a  non-resident, 
the  judge  had  jurisdiction  to  grant  or  refuse  to  make  an  order,  and 
his  determination  that  the  defendant  is  a  non-resident  is  conclu- 
sive.     Wichman  v.  AscJipurwis,  14  Civ.  Pro.  R.  88. 

Where  extrinsic  proof  is  necessary  to  show  parties  as  partners, 
it  is  proper  to  serve  one  absent  from  the  State  by  publication,  and 
the  expense  is  properly  allowable.  Chevers  v.  Damon,  37  St. 
Rep.  904. 

The  provisions  of  §  451  of  the  Code  relating  to  unknown  par- 
ties as  to  manner  in  which  they  may  be  designated  and  served, 
applies  to  all  actions  in  which  service  of  summons  may  be  made 
by  publication.  Bergen  v.  Wyekoff,  84  N.  Y.  659.  And  such 
publication  bars  the  defendants  even  if  they  are  infants.  Wheeler 
V.  Scully,  50  N.  Y.  667. 

While  the  recitals  in  a  judgment  zx^  prima  facie  evidence  of 
jurisdiction,  Boswortk  v.  Vandezvalker,  53  N.  Y.  597,  yet  an  infant 
must  be  actually  served  with  process,  and  the  appointment  and 
appearance  of  a  guardian  ad  litem  will  not  cure  the  defect  and  the 
infant  will  not  be  barred.     Ingersoll  v.  Mangavi,  84  N.  Y.  622. 

An  afifidavit  to  obtain  service  by  publication  on  unknown  heirs, 
made  by  an  attorney,  is  not  enough  to  show  that  the  names  or 
residences  of  the  parties  in  interest  were  unknown  to  the  afifiant, 
since  it  does  not  show  they  were  unknown  to  the  plaintiff.  It 
fails  to  state  the  source  from  which  the  attorney's  information 
was   derived.      Piser  v.  Lockwood,  30  Hun,  6. 


374  FORFXLOSURE. 


Art.  T.      Matters  of   Practice. 


A  married  woman  may  now  appearand  defend  by  her  own  attor- 
ney as  though  she  were  single.     Janinski  v.  Heidelberg,  21   Hun, 
439,  and  the  rule  laid  down  in  the  earlier  authorities  to  the  effect 
that  service  of  a  summons  on  the  husband  was  good  for  both  hus- 
band and  wife  where  she  had   only  an   inchoate  right  of  dower, 
Ferguson  v.  Smith,  2  Johns.  Ch.  139;  Leavitt  v.  Cruger,  i   Paige, 
421  ;  3Iills  V.  Van  Voorhis,  10  Abb.  152;  Nagle  v.  Taggart,  4  Ahh. 
144;  Foote  V.  Lathrop,  53  Barb.  183  ;  Eekerson  v.  Vollmer,  11  How. 
42;  Feitner  v.   Hoeger,  15    St.  Rep.  377,  so  far  as  relates  to  the 
rule  as  it  now  stands,  may  be  regarded  as  obsolete.      See  Kur- 
sheedt  v.  Union  Dime  Savings  Inst,  of  New  York,  118  N.  Y.  358, 
and  the  ruling  in    Taggart  v.  Rogers,  49   Hun,  265,  that  the  old 
chancery  rule  that  a  husband   could   enter  an  appearance  for  his 
wife  without  service  being  made  upon  her  where  the  wife  is  not 
personally  served  in  the  action  and  judgment  recovered,  is  void 
as  to  her,  citing  White  v.  Caulter,  59  N.  Y.  659;  Feitner  v.  Lewis, 
119  N.  Y.  131,  reversing  55   Supr.  519,  16  St.  Rep.  574;  to  the 
same  effect,  15  St.  Rep.  377,  affirmed,  121  N.  Y.  660,  holds  that 
where  action  to  foreclose  a  mortgage  was  brought  in   1838,  and 
no  service  was  made  upon  the  wife,  that  under  the  practice  in 
force  at  that  time  personal  service  upon  the  wife  was  not  neces- 
sary, but  service  upon  the  husband  was  a  good  service  on  both, 
and  this  although  she  was  at  the  time  under  age. 

Sub.  2.   Notice  of  No  Personal  Claim. 

Under  the  provisions  of  §  423  of  Code  of  Civil  Procedure,  where 
no  personal  claim  is  made  against  any  defendant,  a  notice,  setting 
forth  the  object  of  the  action,  a  description  of  the  property 
affected  by  it,  and  that  no  personal  claim  is  made  against  him, 
subscribed  by  the  plaintiff's  attorney,  may  be  served  with  the 
summons.  If  the  person  so  served  unreasonably  defends  the 
action,  costs  may  be  awarded  against  him.  If,  after  being  served 
with  notice  of  no  personal  claim  in  foreclosure  and  stipulation 
that  nothing  in  the  judgment  shall  affect  her  claim  to  dower,  she 
answers,  neither  party  will  be  entitled  to  costs  as  against  the 
other.     Barker  v.  Burton.  67  Barb.  459. 


FORECLOSURE.  375 


a 


Art.  5.     Matters  of  Practice. 


Precedent  for  Notice  of  No  Personal  Claim. 

SUPREME  COURT  — Trial  Desired  in  Ulster  Countv. 


JOHN  S.  DUMONT 

agst. 

HENRY  R.  ENTROTT,  etc. 


(Here  follows  summons,  usual  form.) 

To  the  above-named  defendants  except  Henry  B.  Entrott,  Joseph 
Hendricks  and  Sylvanus  DeVoe: 

Take  notice  that  the  summons  herewith  served  upon  you  in  this 
action  is  issued  upon  a  complaint  praying  for  the  foreclosure  of  a 
mortgage  executed  by  Henry  B.  Entrott  and  wife,  Joseph  Hendricks 
and  wife  and  Sylvanus  DeVoe  and  wife,  all  of  the  town  of  Olive, 
county  of  Ulster  and  State  of  New  York,  to  John  S.  Dumont  of  said 
town,  on  the  14th  day  of  March,  1882,  and  recorded  in  the  office  of 
the  clerk  of  the  county  of  Ulster  in  Book  of  Mortgages  No.  156,  at 
page  347,  on  the  i6th  day  of  March,  1882,  at  4:30  o'clock,  p.  m., 
to  secure  the  payment  of  the  sum  of  $2,000,  with  interest  from  the 
14th  day  of  March,  1882,  upon  the  following  described  premises, 
namely:  (here  insert  description)  and  a  personal  claim  is  not  made 
against  you  or  against  any  defendant  except  against  the  defendants 
Henry  B.  Entrott,  Joseph  Hendricks  and  Sylvanus  DeVoe. 

KENYON  &  SHARPE, 

Plaintiff's  Attorneys, 

Sub.  3.  Guardian  ad  Litem  for  Infant  Defendant. 

Where  an  infant  has  been  served  and  no  guardian  appointed, 
the  judgment  is  voidable  tliough  not  absolutely  void.  Croghan 
V.  Livingston,  17  N.  Y.  218;  Bloom  v.  Bur  dick,  i  Hill,  130; 
Wright  V.  Miller,'^  N.  Y.  9;  Mc Murray  v.  Mc Murray,  66  N.  Y. 
175.  The  method  of  appointing  a  guardian  is  provided  for  by 
§  471  of  the  Code  of  Civil  Procedure. 

Where  an  infant  defendant  in  an  action  for  foreclosure  is  served 
with  process,  but  no  guardian  ad  litem  is  appointed  and  judgment 
is  taken  by  default,  the  judgment  is  not  void  but  voidable.  In 
such  case,  where  judgment  is  obtained  by  fraud  or  collusion,  an 
action  may  be  maintained  on  the  part  of  the  infant  to  set  it  aside. 
McMurrayv.  McMurray,  66  N.  Y.  175.  A  purchaser  at  a  fore- 
closure sale,  in  a  case  where  service  has  been  made  on  the  guard- 
ian ad  litem,  but  not  on  the  infant,  will  not  be  compelled  to  pay 
his  bid  and  accept  a  deed.     Ingcrsoll  v.  Mangani,  24  Hun,  202, 


376 


FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


affirmed,  84  N.  Y.  622.  Where  a  guardian  ad  litejn  had  no 
notice  of  his  appointment  until  after  final  judgment,  he  may 
then  have  leave  to  come  in  and  answer;  but  not  in  case  the 
plaintiff  consents  to  strike  out  the  name  of  the  infant  as  a  de- 
fendant. Farmers'  Loan  and  Trust  Co  v.  Erie  Railway  Co.  9 
Abb.  N.  C.  264.  If  the  infant  is  a  non-resident,  and  does  not 
appear,  or  is  not  made  a  party  to  the  suit,  the  court  has  no  juris- 
diction to  appoint  a  guardian  ad  litem ;  so  held  in  a  case  where 
there  was  personal  service  on  the  mother  of  the  infant  who  resided 
in  New  Jersey,  and  the  mother  was,  upon  her  own  application, 
appointed  guardian  ad  litem.  An  appearance  by  one  appointed 
guardian  ad  litem  for  an  infant  defendant,  who  has  not  been 
served  with  process,  is  not  a  voluntary  appearance,  which  is 
equivalent  to  the  personal  service  of  a  summons,  higersoll  v. 
Mangam,  84  N.  Y.  622.  As  to  general  provisions  of  Code  for 
appointment  of  guardian  ad  litem,  for  infant  defendant,  see  §§ 
468-477,  inclusive,  of  Code  of  Civ.  Pro. ;  also  Rules  49  and  50. 
An  answer  of  an   infant   defendant    need   not   be   verified.     See 

§  523- 


Answer  by  Guardian  ad  Litem. 

SUPREME  COURT  — Ulster  County. 


THE  ULSTER  COUNTY  SAVINGS  INSTI- 
TUTION 

agst. 

GEORGE  W.  BASTEN  and  SARAH  M. 
BASTEN,  HIS  Wife;  EDGAR  H.  BASTEN, 
LOUIS  B.  BASTEN,  JAMES  OLIVER 
AND  SAMUEL  M.  BASTEN. 


The  defendant  Samuel  M.  Basten,  answering  the  complaint  in  the 
above-entitled  action  by  his  guardian  ad  litem,  George  V.  Basten, 
says  that  he  is  a  stranger  to  all  and  singular  the  matters  in  the  com- 
plaint in  this  action  set  forth,  and  that  he  is  an  infant  under  the  age 
of  twenty-one  years,  and  claims  such  interest  in  the  premises  as  he 
is  entitled  to,  and  he  submits  his  rights  and  interests  in  the  matters 
in  question  in  this  action  to  the  protection  of  the  court. 

S.   D.   HOOD, 

Attorney  for  George  V.  Basten,  guardian  ad  litem  for  infant 
defendant  Samuel  M.  Basten. 


FORECLOSURE.  377 


Art.  5.     Matters  of  Practice. 


Sub.  4.   Miscellaneous  Rules  and  Regulations. 

A  complaint  in  an  action  for  foreclosure,  when  verified  by  the 
plaintiff's  attorney,  may  be  treated  as  an  unverified  complaint. 
Peyser  v.  McCormack,  7  Hun,  300.  "Where  any  of  the  parties  die 
before  judgment  it  should  be  revived,  and  continued  in  the 
names  of  their  personal  representatives.  Gerry  v.  Post,  13  How. 
118.  See  Grant  v.  Griswold,  21  Hun,  509;  S.  C.  82  N.  Y.  569. 
Where  a  mortgagor,  who  is  personally  liable  for  a  deficiency,  dies, 
his  executor  may  be  made  party  to  a  suit  for  a  foreclosure,  and  a 
decree  may  be  made  that  the  deficiency  be  paid  out  of  the  assets 
in  their  hands  in  due  course  of  administration.  Glacius  v.  Fogel, 
88  N.  Y.  434.  But  the  death  of  any  of  the  parties  subsequent  to 
judgment  will  not  affect  the  action.  Harrison  v.  Simonds,  3 
Edw.  Ch.  394;  Lynde  v.  O' Donne//,  21  How.  34;  Hayes  v. 
T/iomas,  56  N.  Y.  521.  There  need  be  no  amendment  on  account 
of  assignment  of  decree.  Laing  v.  Titus,  18  Abb.  338.  On  a 
substitution  of  plaintiffs,  notice  should  be  given  to  all  the  defend- 
ants, whether  they  have  appeared  or  not.  McLean  v.  Tompkins, 
18  Abb.  24.  A  defendant  may  serve  notice  of  appearance  after 
judgment,  and  will  then  be  entitled  to  notice  of  all  subsequent 
proceedings.     Martine  v.  Lowenstein,  6  Hun,  225,  68  N.  Y.  456. 

The  parties  to  a  foreclosure  suit  are  not  entitled  to  trial  by 
jury;  it  is  in  the  discretion  of  the  court  whether  issues  of  fact 
shall  be  passed  on  by  a  jury  to  inform  the  conscience  of  the  court. 
Rar/zer  v.  Burton,  Gy  Barb.  458;  Losee  v.  E//is,  13  Hun,  655; 
Knic/eer backer  Life  Ins.  Co.  v.  Ne/son,  8  Hun,  21  ;  Carro//  v. 
Deime/,  95  N.  Y.  252.  A  foreclosure  suit  may  be  commenced  by 
service  on  defendants  in  any  county  in  the  State,  or  by  publica- 
tion against  non-residents.  See  Code  of  Civ.  Pro.  §  438 ;  Bates 
V.  Reyno/ds,  7  Bosw.  685  ;  Spyer  v.  Fis/ier,  5  J.  &  S.  93 ;  Porter  v. 
Lord,  13  How.  254. 

If  an  answer  merely  alleges  part  payment,  foreclosure  for  the 
balance  may  be  decreed.  //«// v.  Z/^?//,  25  Hun,  277,  An  answer 
setting  up  a  junior  mortgage  is  not  evidence  of  the  existence  of 
such  a  mortgage  against  defendants,  who  suffered  the  bill  to  be 
taken  as  confessed;  or  incumbrancers  not  made  parties.  Bcekman 
v.  Gibbs,  8  Paige,  511.  An  offer  of  judgment  may  be  made  in  an 
action  of  foreclosure,  and  such  ofTcr  will  cut  off  the  right  to  an 
extra  allowance.     Astor  v.  Pa/ac/te,  49  How.  231.      In  foreclosure 


378 


FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


for  the  interest,  if  the  principal  becomes  due  during  the  pendency 
of  the  action,  the  pleadings  may  be  amended  to  conform  to  the 
proof.  Sidenbiirg  v.  Ely,  i  Law  Bull.  70.  A  supplemental  com- 
plaint is  proper  in  an  action  of  foreclosure,  where  the  original 
complaint  shows  a  right  to  some  relief  for  the  purpose  of  setting 
out  subsequent  facts.  Hasbrouck  v.  Sinister,  4  Barb.  285  ;  Cand- 
ler w.  Peftit,  I  Paige,  168;  Bostwick  v.  Menck,  8  Abb.  (N.  S.) 
169;  Stihvell  V.  Van  Epps,  i  Paige,  615;  Malcolm  v.  Allen,  49 
N.  Y.  448.  Upon  trial  in  foreclosure  defendant  may  be  per- 
mitted to  serve  supplemental  answer.  Knickerbocker  Life  Ins. 
Co.  V.Nelson,  78  N.  Y.  137.  But  see  Tliieme  v.  Bet /ton,  13  Week. 
Dig.  91.  Plaintiff's  proceedings  are  not  to  be  stayed  by  an  issue 
merely  between  co-defendants.  N.  V.  Life  Ins.  Co.  v.  Devlin,  3 
Law  Bull.  99.  Foreclosure  of  a  subsequent  mortgage  cannot  be 
stayed,  though  judgment  has  been  obtained  on  prior  ones.  Daily 
V.  King,  41  How.  22.  In  an  action  to  have  an  assignment  of  a 
lease  declared  a  mortgage,  a  judgment  so  declaring  it,  but  order- 
ing the  complaint  dismissed  within  a  certain  time  if  redemption 
be  not  made,  is  not  a  foreclosure  until  the  final  order  dismissing 
the  complaint.     Bolles  v.  Duff,  43  N.  Y.  469. 

A  judgment  by  default  may  be  set  aside  as  in  other  actions  in 
case  the  defendant  produces  the  proposed  sworn  answer,  so  that 
the  court  may  see  that  he  has  merits  on  his  petition,  or  affidavit 
states  the  nature  of  his  defence  and  his  belief  in  the  truth  of  the 
matter  constituting  his  defence,  so  far,  at  least,  as  to  enable  the 
court  to  see  that  injustice  will  probably  be  done  if  the  order  to 
take  the  bill  as  confessed  be  permitted  to  stand.  Powers  v. 
Trenor,  3  Hun,  3,  afifirming  48  How.  500.  See,  also.  Heat  v. 
Wallis,  6  Paige,  371 ;  IVinship  v.  Jewell,  i  Barb.  Ch.  173  ;  Goodhue 
v.  Churchman,  i  Barb.  Ch.  596.  It  is  said  foreclosure  suits  may 
be  consolidated,  but  the  motion  therefor  must  be  made  before 
the  causes  are  brought  to  trial.  Eleventh  Ward  Savings  Bank  v. 
Hay,  55  How.  438.  Co7itra,  Beach  v.  Riiggles,  6  Abb.  N,  C.  69; 
Selkirk  V.  Wood,  g  Civ.  Pro.  R.  141.  But  where  the  foreclosure 
is  against  premises  not  the  same,  although  against  same  parties, 
its  consolidation  will  be  refused.  Kipp  v.  Delamater,  58  How. 
183.  Where,  upon  the  trial,  it  appeared  that  one  of  the  defend- 
ants was  an  infant  at  the  time  she  signed  the  mortgage,  the  com- 
plaint as  to  such  defendant  will  be  dismissed ;  but  where  she 
omitted  to  disaffirm  the  contract  of  the  mortgage,  and  plaintiff 


FORECLOSURE.  379 


Art.  5.     Matters  of  Practice. 


proceeded  in  ignorance  of  the  infancy  till  the  trial,  such  infant 
defendant  should  not  have  costs  against  plaintiff.  Irivin  v. 
O'Connor,  15  Week.  Dig.  124.  If  the  answer  presents  what  may 
be  claimed  to  be  a  defence,  the  Special  Term  cannot  order  judg- 
ment. Stiiyvesant  v.  Browning,  33  Supr.  Ct.  203.  If  an  infant 
answers  raising  a  material  issue,  it  must  be  tried  by  the  court  or 
referred,  though  he  fail  to  appear.  Exchange  Fire  Ins.  Co.  v. 
Early,  54  How.  279;  Jackson  v.  Rcon,  60  How.   103. 

A  complaint  in  foreclosure  prayed  that  if  the  proceeds  were 
insufficient,  an  accounting  might  be  had  of  the  rents  and  profits 
by  the  then  owner,  who  had  purchased  the  premises  subject  to 
the  mortgage  and  taxes,  but  had  not  assumed  to  pay  them,  and 
that  he  might  be  adjudged  to  pay  any  deficiency  to  the  extent 
of  the  rents  and  profits  received  by  him.  None  of  the  defendants 
answered  or  demurred.  There  being  a  deficiency,  the  referee,  on 
the  accounting,  found  that  the  owner  had  collected  more  than 
the  taxes  amounted  to.  On  motion  to  confirm  the  report  and 
for  judgment,  Jield,  that  the  owner's  failure  to  answer  was  not  an 
admission  that  plaintiff  was  entitled  to  the  relief  demanded,  but 
simply  that  he  was  entitled  to  such  relief  as  the  facts  alleged 
entitled  him  to  have.  Argall  v.  Pitts,  78  N.  Y.  239.  A  judg- 
ment may  be  opened,  after  foreclosure,  to  enable  a  defendant  to 
protect  himself  against  liability  for  a  deficiency  by  pleading  his 
discharge  in  bankruptcy.  Mutual  Life  Ins.  Co.  v.  Cameron,  1 
Abb.  N.  C.  424.  See  Trustees  v.  Merriam,  59  How.  226.  A 
recital  in  a  judgment  of  foreclosure  that  affidavits  were  read  and 
filed  showing  the  service  of  the  summons,  means  the  service  of  a 
summons  necessary  for  the  commencement  of  the  action  against 
all  the  defendants.  Boszvorth  v.  Vandczvalkcr,  53  N.  Y.  597.  A 
judgment  for  deficiency  must  be  recovered  in  foreclosure  to  sus- 
tain an  action  to  enforce  payment  of  the  deficiency  from  land 
devised  by  the  mortgagor.     Lockwood  v.  Faiucett,  17  Hun,  146, 

A  person  claiming  dower,  by  a  title  paramount  to  the  mort- 
gagee, cannot  be  brought  into  court  in  a  foreclosure  suit  to  set  up 
the  validity  of  her  dower  after  judgment.  Her  right  is  the  same 
as  if  she  had  not  been  made  a  party.  Lewis  v.  Smith,  9  N.  Y. 
502;  Merchants  Bajik  v.  Thompson,  55  N.  Y.  7.  But,  if  the 
mortgage  is  given  to  secure  the  purchase  money,  the  wife's 
dower  is  subject  to  the  mortgage  and  is  barred  if  she  is  made  a 
party.      So  held  in  foreclosure    by  advertisement.     Breckctt  v. 


380  FORECLOSURE. 


Art.  5.     Matters  of  Practice.  mI 


Baum,  50  N.  Y.  278.  The  court  has  no  power  to  enter  a  judg- 
ment dismissing  the  statutory  lien  of  a  judgment  creditor  who 
has  not  answered,  and  divide  the  surplus  among  others,  especially 
when  in  the  complaint  no  such  relief  was  demanded.  Rogers  v. 
Ivers,  23  Hun,  424,  citing  Chautauqua  Bank  v.  Risley,  19  N.  Y. 
375.  A  judgment  of  foreclosure  and  sale  may  be  executed,  not- 
withstanding the  death  of  the  mortgagor,  by  a  sale  of  his  interest. 
Revival  is  unnecessaiy.  Hays  v.  Thomas,  50  N.  Y.  521  ;  Ly?ide 
V.  O'Domiell,  12  Abb.  286;  Harrison  v.  Simons,  3  Edw.  394.  As 
to  the  impropriety  of  entering  a  judgment  after  death  of  mort- 
gagor nunc  pro  tunc,  see  Grant  v.  Griswold,  21  Hun,  509;  appeal 
dismissed,  82  N.  Y.  569.  Neither  does  the  death  of  the  plaintiff 
after  judgment  and  before  sale  make  it  necessary  to  stay  pro- 
ceedings or  revive.  Lynde  v.  O'Donncll,  12  Abb.  286.  Other- 
wise, when  plaintiff  dies  before  judgment.  Gerry  v.  Post,  13 
How.  118.  Where  the  sole  plaintiff  dies  after  report  of  referee 
and  before  entry  of  judgment,  a  sale  without  revivor  is  a  mere 
irregularity  and  will  not  defeat  the  title  of  the  purchaser.  Smith 
V.  Joyce,  II  Civ.  Pro.  R.  257. 

In  the  absence  of  fraud  or  collusion  on  the  part  of  the  mort- 
gagee and  his  attorney,  preventing  the  mortgagor  from  paying 
interest,  their  motives  in  foreclosing  the  mortgage  are  immaterial. 
Trenor  v.  Le  Count,  84  Hun,  426,  32  Supp.  412,  65  St.  Rep.  610. 

In  an  action  brought  by  the  holder  of  bonds  of  a  railroad  com- 
pany on  behalf  of  himself  and  others  to  foreclose  a  mortgage 
given  to  secure  the  same,  after  a  refusal  of  the  trustees  to  sue  the 
company,  it  tendered  to  plaintiff  the  amount  of  his  unpaid  cou- 
pons; held,  the  tender  was  not  sufficient  to  arrest  the  action  unless 
it  was  a  tender  of  all  the  interest  on  the  bonds,  the  holders  of 
which  had  not  agreed  to  postpone  their  claim  or  interest.  Van 
Benthuysen  v.  Central  New  Eng.  &  Western  R.  R.  Co.  45  St.  Rep. 
16,  17  Supp.  709. 

A  trustee  appointed  pending  an  action  of  foreclosure,  in  place 
of  the  trustee  holding  the  equity  of  redemption,  who  had  resigned, 
cannot  be  added  as  a  new  party,  but  should  be  substituted  in 
place  of  the  former  trustee.  Grisivoldv.  Caldwell,  14  Misc.  299, 
25  Civ.  Pro.  R.  122,  70  St.  Rep.  682,  35  Supp.  1057. 

Where  ample  notice  was  given  to  the  owner  of  the  fee  before 
the  commencement  of  the  action  that  the  mortgagees  elected  to 
foreclose  if  interest  was  not  paid  as  provided  in  the  interest  clause, 


FORECLOSURE.  38 1 


Art.  5.     Matters  of  Practice. 


the  action  cannot  be  defeated  by  a  tender  of  the  interest  due  and 
costs  subsequently  made.  Osborne  v.  Ketchain,  76  Hun,  325,  27 
Supp.  694,  59  St.  Rep.  83. 

An  order  denying  a  motion  to  settle  issues  and  direct  the  trial 
thereof  by  a  jury  is  discretionary.  French  v.  Raw,  77  Hun,  380, 
28  N.  Y.  Supp.  849,  60  St.  Rep.  396. 

The  seal  upon  a  mortgage  is  only  presumptive  evidence  of  a 
sufificient  consideration  which  may  be  rebutted,  and,  therefore, 
evidence  of  declarations  at  and  before  the  execution  of  the  mort- 
gage are  admissible  to  show  want  of  consideration  and  the  pur- 
pose for  which  it  was  given.  As  against  the  personal  representa- 
tive of  a  deceased  mortgagee  the  declarations  of  the  testator  made 
while  he  was  the  owner  and  holder  of  the  mortgage,  are  compe- 
tent in  an  action  to  foreclose.  Bairdv.  Baird,  81  Hun,  300,  30 
Supp.  785. 

An  order  of  the  General  Term  reversing  an  order  allowing  an 
amendment  to  the  complaint  after  trial,  by  setting  up  an  omis- 
sion from  the  mortgage  by  mistake  of  land  intended  to  be  covered 
by  it,  is  discretionary  and  not  reviewable  in  the  Court  of  Appeals. 
Sprague  v.  Cochran,  144  N.  Y.  104,  38  N.  E.  Rep.  1000,  63  St. 
Rep.  63. 

A  refusal  by  a  trustee  to  allow  a  bondholder  to  foreclose  by 
his  own  attorneys  unless  the  trustee  is  indemnified  for  costs,  is 
not  such  a  refusal  as  makes  it  proper  for  the  bondholder  to  bring 
the  action ;  nor  does  the  failure  of  the  trustee  to  bring  suit  for  a 
long  time  after  the  default  of  itself  give  a  bondholder  such  right, 
since  foreclosure  is  usually  a  last  resort  in  such  case.  Beebe  v. 
Richmond  Light,  Heat  and  Power  Co.  13  Misc.  737,  69  St.  Rep. 
230,  35  Supp.  I. 

It  is  not  necessary  for  plaintiff  to  allege  or  prove  in  the  first 
instance  that  his  mortgage  was  given  for  value,  although  it  may 
be  his  duty  to  do  so  after  proof  of  a  prior  agreement,  still  where 
no  objection  has  been  taken  of  the  failure  of  such  proof,  it  will 
not  be  considered  on  appeal.  Oliphant  v.  Burns,  146  N.  Y.  218, 
66  St.  Rep.  594. 

An  attorney  for  a  party  has  a  right  to  act  for  him  until  final 
judgment  and  payments  made  to  him  upon  interlocutory  judg- 
ment in  foreclosure  are  binding  on  his  client.  Mi//s  v.  Stuart, 
88  Hun,  503,  34  Supp.  786,  68  St.  Rep.  584. 

A  bondholder's  action  to  procure  the  re-sale  of  a  railroad  under 


382  FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


foreclosure,  and  a  bill  of  review  of  the  suit  in  which  a  receiver 
was  appointed,  who  paid  out  large  sums  to  the  prejudice  of  bond- 
holders, was  sustained  in  Sf evens  v.  Union  Trust  Co.  33  St.  Rep. 
130,  II  Supp.  268. 

Where  a  defendant  as  part  owner  and  holder  of  a  subsequent 
mortgage  made  by  another  part  owner  after  entry  of  judgment, 
moved  for  leave  to  pay  off  the  mortgage  in  suit  and  compel  an 
assignment  of  it  to  him,  it  was  held  that  he  was  entitled  to  sub- 
rogation as  against  other  part  owners  and  creditors  of  a  part  owner 
who  sought  subrogation  in  order  to  effect  an  immediate  sale.  De 
Forrest  v.  Peck,  84  Hun,  299,  65  St.  Rep.  611,  32  Supp.  413. 

The  relief  which  defendants  may  have  against  each  other  in 
foreclosure  must  be  based  upon  the  facts  involved  in  the  allega- 
tions of  plaintiff's  claim  and  as  part  of  its  adjustment,  and  within 
those  limits  such  relief,  if  demanded  in  the  answers,  may  be 
granted.  Binghamton  Savings  Bank  v.  BingJianiton  Trust  Co.  85 
Hun,  75,  66  St.  Rep.  40,  32  Supp.  657;  citing  Ostrander  v.  Hart, 
130  N.  Y.  406. 

The  plaintiff  is  not  obliged  to  produce  the  bond  on  the  trial  in 
order  to  make  out  2l  prima  faeie  case  where  its  making,  execution 
and  delivery  are  admitted  by  the  answer,  and  the  defence  set  up 
is  payment.  Anderson  v.  Culver,  127  N.  Y.  377,  38  St.  Rep.  898. 
An  injunction  will  not  be  granted  at  the  suit  of  one  having  a 
subordinate  interest,  to  restrain  a  mortgagee  from  foreclosing  his 
mortgage  on  the  ground  that  a  sale  of  real  estate  or  personal 
property  of  the  debtor  separately  would  produce  less  than  a 
sale  of  all  together  or  at  the  same  time.  Buffalo  Chemical 
Works  V.  Bank  of  Commerce,  79  Hun,  93,  61  St.  Rep.  143,  29 
Supp.  663. 

In  an  action  to  foreclose  a  second  mortgage,  the  prior  mort- 
gagee was  made  a  party,  did  not  plead  and  her  mortgage  was 
directed  to  be  first  paid  out  of  the  proceeds,  held  that  the  com- 
plaint in  an  action  for  foreclosure  brought  by  her  pending  the 
former  one  and  before  the  decree  was  properly  dismissed.  Jacobie 
v.  Mickle,  53  St.  Rep.  620,  24  Supp.  87,  citing  Parkhurst  v. 
Bcrdell,  1 10  N.  Y.  386. 

Where  plaintiff  in  a  foreclosure  suit  made  a  prior  lienor  a  party 
seeking  relief  against  the  prior  lien  and  a  sale  was  ordered  sub- 
ject to  the  lien,  held  that  allegations  in  the  answers  of  other 
defendants  unsupported  by  evidence,  could   not  be  accepted  as 


FORECLOSURE.  383 


Art.  5.      Matters  of  Practice. 


proof,  especially  where  the  answers  were  not  put  in  evidence,  and 
the  plaintiff  not  appealing,  that  the  prior  lienor  had  no  ground 
for  appeal.      Qninlan  v.  Strattan,  128  N.  Y.  659. 

The  lien  of  a  second  mortgage  held  by  a  mortgagee  as  trustee 
is  not  cut  off  by  the  foreclosure  of  a  prior  mortgage  where  such 
mortgagee  is  only  made  a  party  to  the  action  in  his  individual 
capacity  and  it  is  not  made  to  appear  that  the  trust  represented 
by  him  is  intended  or  understood  to  be  affected.  McGuckin  v. 
Mi/bank,  83  Hun,  473,  31  Supp.  1049,  ^5  ^t-  Rep.  79. 

Where  the  name  of  a  defendant  appears  in  the  title  of  the 
complaint  but  not  in  the  body  of  it,  and  there  is  nothing  to  show 
his  connection  with  the  property  or  cause  of  action,  the  court  has 
power  on  the  trial  to  direct  an  amendment  by  inserting  an  alle- 
gation as  to  his  interest.  Schooiunakcr  v.  Blass,  88  Hun,  179,  34 
Supp.  424,  68  St.  Rep.  382. 

An  action  may  be  maintained  to  set  aside  an  assignment  of  a 
mortgage  and  judgment  of  foreclosure  where  the  same  has  been 
procured  by  fraud,  and  plaintiff  had  no  notice  of  the  action  until 
after  the  sale.  Baker  v.  Byrn,  89  Hun,  115,  35  Supp.  556,  69 
St.  Rep.  469. 

Where  a  grantee  of  mortgaged  premises  alleges  as  a  defence  to 
an  action  to  foreclose  a  mortgage,  that  the  assumption  clause  was 
fraudulently  inserted  in  the  deed  without  his  knowledge  or  con- 
sent, parol  evidence  as  to  what  was  .said  between  the  parties  to 
the  deed  prior  to  its  execution  intending  to  show  the  actual  agree- 
ment, is  admissible.  Vmi  Alstync  v.  SinitJi,  82  Hun,  382,  (S}^  St. 
Rep.  595,  31  Supp.  277. 

A  loan  of  money  secured  by  a  mortgage  on  the  real  estate 
bought  with  it,  the  borrower  and  lender  to  share  in  the  profits 
when  closed  out,  held  not  as  between  themselves  to  make  them 
partners  so  as  to  prevent  a  foreclosure  of  the  mortgage.  Smith  v. 
Lennon,  37  St.  Rep.  937,  14  Supp.  259;  Same  v.  Same,  ij  St.  Rep. 
939,  14  Supp.  260. 

A  motion  to  open  a  judgment  of  foreclosure  to  allow  a  defend- 
ant to  answer,  made  after  the  lapse  of  seventeen  years,  is  prop- 
erly denied  on  the  ground  of  laches.  Meyer  v.  Mal/oii,  85  Hun, 
450,  32  Supp.  889,  66  St.  Rep.  206. 

An  omission  to  open  a  decree  of  foreclosure  on  the  ground  that 
the  judgment-roll  did  not  show  that  the  former  owner  of  the 
property,  who  conveyed  as  single,  was  in  fact  married,  denied  as 


384  FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


frivolous,  the  motion  papers  not  alleging  he  was  married.  Hol- 
land Trust  Co.  V.  Hogan^  44  St.  Rep.  577,  17  Supp.  919. 

A  judgment  of  foreclosure  may  be  amended  by  including  taxes 
paid  by  the  mortgagee  after  the  entry  of  judgment;  but  it  seems 
the  payment  of  insurance  on  the  property  cannot  be  included. 
Mutual  Life  Insurance  Co.  v.  Newell,  78  Hun,  293,  60  St.  Rep. 
241,  28  Supp.  913. 

The  neglect  of  a  guardian  ad  litem  to  interpose  a  formal 
answer  in  an  action  to  foreclose,  is  a  mere  irregularity  which 
the  court  may  cure  at  any  time  by  permitting  an  answer  to  be 
filed  nunc  pro  tutic,  and  its  absence  does  not  invalidate  the  judg- 
ment.    Hopkins  V.  Frey,  64  Hun,  213,  46  St.  Rep.  133,  18  Supp. 

903- 

In  an  action  to  foreclose  a  mortgage  where  it  appeared  that  a 

prior  mortgage  had  been  foreclosed  in  a  suit  to  which  the  pres- 
ent plaintiff  was  not  a  party,  all  the  necessary  parties  being  before 
the  court  and  the  pleadings  being  sufficient,  it  was  held  that  the 
action  could  be  turned  into  one  of  redemption.  Denton  v. 
Ontario  Co.  National  Bank,  44  St.  Rep.  33,  18  Supp.  38. 

Where  defendant  was  inadvertently  made  a  party  to  an  action 
of  foreclosure  and  appeared,  but  not  until  after  a  motion  had 
been  made  noticed  to  strike  out  his  name  as  a  party,  but  he 
received  no  notice  of  the  motion,  it  was  held  that  his  appearance 
was  regular  and  he  was  entitled  to  notice.  Stephens  v.  Hall,  32 
St.  Rep.  453. 

But  where  a  party  acquired  title  after  a  decree  of  foreclosure 
and  was  not  a  party  to  the  suit,  he  was  held  not  to  be  entitled  to 
notice  of  motions  made  therein.  Wing  v.  De  La  Rionda,  25  St. 
Rep.  1005.  A  defendant  who  sets  up  the  defence  of  cham- 
perty, fraud,  intimidation,  false  representation  and  maintenance, 
is  not  thereby  entitled  as  matter  of  right  to  trial  by  jury. 
Stephens  V.  Humphreys,  32  St.  Rep.  211.  Where  one  of  several 
defendants  demurred  for  misjoinder  of  causes  of  action,  which 
demurrer  was  overruled  with  privilege  to  answer,  and  one  of  the 
other  defendants  did  not  avail  himself  of  the  privilege  within  the 
time  specified,  it  was  held  error  to  enter  judgment  against  him 
before  the  other  defendants  were  in  default.  Fales  v.  Lawson,  21 
St.  Rep.  710. 

An  order  may  be  made  after  entry  of  a  decree  of  foreclosure 
providing  for  carrying  out  the  same  after  the  death  of  the  defend- 


FORECLOSURE.  385 


Art.  5.     Matters  of  Practice. 


ant  mortgagor,  without  reviving  an  action  against  his  heirs  or 
representatives.      Wing  v.  De  La  Rionda,  125  N.  Y.  678. 

In  Hurst  v.  Elliott,  52  Hun,  273  ;  S.  C.  23  St.  Rep.  476,  it  is 
questioned  whether  a  mortgagor  who  has  sold  his  equity  of 
redemption  in  the  mortgaged  premises  without  taking  any 
indemnity  against  his  Habihty  upon  his  bond,  can  enjoin  his 
vendee  against  waste.  It  is  only  where  a  bond  is  shown  to  have 
accompanied  a  mortgage  and  to  be  the  only  apparent  evidence  of 
the  debt  to  which  the  mortgage  is  collateral,  that  it  must  be 
produced  or  its  non-production  accounted  for  on  the  trial. 

Where  it  appears  that  although  the  mortgage  recited  the  giv- 
ing of  a  bond,  no  bond  was  in  fact  executed  and  the  debt  is  shown 
by  the  statements  contained  in  the  mortgage,  the  non-production 
of  a  bond  is  not  fatal  to  a  judgment  of  foreclosure.  Mtinoz  v. 
Wilson,  III  N.  Y.  295. 

Where  a  mortgagee  is  made  a  party  and  the  complaint  alleges 
that  he  has  or  claims  some  interest  in  the  mortgaged  premises 
which  is  subsequent  and  subject  to  the  plaintiff's  lien,  it  seems 
that  he  will  on  his  own  motion  be  stricken  out  as  a  party.  Fer- 
ris v.  Hard,  15  Civ.  Pro.  R.  171.  Where  a  prior  mortgagee  is 
made  a  party  and  interposed  an  answer  setting  up  the  superiority 
of  his  lien  and  died  pending  the  action,  where  the  plaintiff  filed  a 
stipulation  waiving  all  claim  to  priority  over  such  defendant's 
mortgage  and  asking  that  he  be  allowed  to  proceed  to  judg- 
ment, it  was  held  that  such  application  should  be  granted,  upon 
the  ground  that  where  an  action  is  brought  against  several  de- 
fendants and  one  of  them  was  not  properly  a  party,  plaintiff 
may  proceed  against  the  other  defendants.  Ferris  v.  Hard,  15 
Civ.  Pro.  R.  171. 

If  a  party  who  was  a  proper  but  not  a  necessary  party  dies  or 
his  interest  devolves  on  another  pending  the  action,  the  proceed- 
ings may  go  on  without  reviving  the  action  or  continuing  them 
against    the   successor   in  interest.     Ferris  \.  Hard,  17   St.  Rep. 

364- 

A  judgment  of  foreclosure  on  lands  situated  partly  in  this  and 

party  in  an  adjoining  State,  is  properly  restricted  to  the  sale  of 

the  lands  in  this  State  and  may  direct  judgment  for  the  deficiency 

without  waiting  the  result  of  the  foreclosure   in  the  other  State. 

Clark  V.  Simmons,  55   Hun,  175;  s.  c.  28  St.  Rep.  738,  8   N.  Y. 

Supp.  74. 

[Special  Actions  —  25] 


386  FORECLOSURE. 


Art.  5.      Matters  of  Practice. 


Two  causes  of  action  to  foreclose  two  mortgages  upon  the  same 
real  estate,  both  of  which  are  held  by  one  party  and  past  due,  but 
which  were  not  given  at  the  same  time,  nor  by  the  same  parties, 
and  which  were  accompanied  by  bonds  executed  by  different  per- 
sons, may  properly  be  joined  in  one  complaint,  where  it  is  alleged 
that  all  the  defendants  have,  or  claim  to  have,  some  interest  in  or 
lien  upon  the  mortgaged  premises  subsequent  to  the  lien  of  the 
mortgages  therein  described,  and  that  notwithstanding  that  the 
persons  against  whom  a  deficiency  judgment  was  sought  on  differ- 
ent causes  of  action,  were  not  the  same.  Morrisscy  v.  Leddy,  1 1 
Civ.  Pro.  R.  438. 

Action  to  foreclose  for  simple  contract  debt  which  mortgage 
was  given  to  secure,  is  not  barred  in  six  years,  but  no  judgment 
can  be  had  for  deficiency.      Hurlhut  v.  Clark,  33  St.  Rep.  354. 

When  a  vendee  in  an  unsealed  instrument  for  the  sale  of  real 
estate  continues  in  possession,  claiming  under  an  executory  con- 
tract, an  action  to  foreclose  the  contract  is  not  barred  by  the 
lapse  of  six  years  between  the  date  of  the  last  judgment  and  the 
date  of  the  commencement  of  the  action.  Piatt  v.  \Vtllson,  23 
St.  Rep.  879. 

As  to  the  effect  of  possession  on  mortgage  to  boim  fide  mort- 
gagor, see  Bassett  v.  Wood,  29  St.  Reo  901  ;  PJielan  v.  Brady, 
119  N.  Y.  587. 

In  foreclosing  a  lost  bond  and  mortgage,  it  is  unnecessary  to 
exact  from  plaintiffs  a  bond  to  indemnify  the  mortgagor  from 
loss  or  damage,  since  he  may  safely  pay  the  mortgage  without 
the  production  of  the  lost  instrument,  if  he  has  had  no  notice  or 
knowledge  of  any  assignment.  In  an  action  to  foreclose  a  mort- 
gage where  a  part  of  the  lands  covered  by  it  are  situated  in  an- 
other State,  the  court  in  decreeing  foreclosure  may  require  the 
mortgagor  to  execute  a  conveyance  to  the  purchaser.  Union  Trust 
Co.  V.  Oi justed,  102  N.  Y.  729. 

Where,  on  the  foreclosure  of  a  mortgage  given  to  secure  several 
notes,  the  plaintiff  entered  a  judgment  by  default,  directing  the 
order  in  which  the  notes  should  be  paid  out  of  the  proceeds,  the 
provision  was  stricken  out  on  motion  of  the  mortgagor  and  the 
proceeds  directed  to  be  applied /re?  rata  upon  the  notes.  Orleans 
Co.  Nat.  Bank  v.  Moore,  112  N.  Y.  543. 

Where  the  answer  of  an  infant  raises  a  material  issue,  a  motion 
for  judgment,  based  solely  on  an  affidavit  of  regularity  under  the 


FORECLOSURE.  387 


Art.  5.     Matters  of  Practice. 


rule  must  be  denied.  Jackson  v.  Reon,  60  How.  103.  Where  the 
answer  was  insufficient,  and  no  evidence  was  given,  and  the  court 
ordered  judgment  upon  the  pleadings  when  the  case  was  called, 
held,  that  no  findings  of  fact  were  required.  Eaton  v.  Wells,  22 
Hun,  123,  affirmed,  82  N.  Y.  576.  One  who  a.ssigns  a  mortgage 
as  collateral  security  for  his  own  debt,  and  after  default  in  his 
debt  is  made  a  defendant  in  an  action  to  foreclose  the  mortgage, 
must  set  up  his  equity  if  he  would  preserve  it.  If  he  does  not, 
the  usual  judgment  of  foreclosure  bars  him,  and  if  the  premises 
sell  to  plaintiff  for  less  than  enough  to  pay  the  debt  as  security 
for  which  the  mortgage  is  held  as  collateral,  the  assignor  cannot 
redeem.     Bloomer  v.  Sturges,  58  N.  Y.  168. 

A  judgment  of  foreclosure  and  sale  in  an  action  to  foreclose  a 
first  mortgage  is  not  before  sale  a  bar  to  an  action  to  foreclose 
a  junior  mortgage,  although  the  junior  mortgagee  was  made  a 
party  to  the  first  action.  Bachcv.  Purcell,  6  Hun,  518.  See  Sal- 
mon V.  Allen,  II  Hun,  29.  In  1872  defendant  gave  plaintiff's 
testator  a  bond  and  mortgage,  and  saw  them  in  his  possession 
just  before  his  death  in  1874.  After  taking  possession  of  testa- 
tor's papers  plaintiff  could  not  find  and  has  never  seen  the  bond 
and  mortgage ;  no  assignment  is  on  record  ;  defendant  is  ready  to 
pay.  Held,  plaintiff  was  bound  to  give  defendant  a  bond  of 
indemnity  before  judgment  for  foreclosure  and  sale.  Stoddard 
V.  Gailor,  12  Week.  Dig.  244.  A  creditor's  lien,  obtained  between 
the  filing  of  the  lis  pendens  and  the  filing  of  the  complaint,  is  not 
affected  by  an  order  of  the  court  directing  the  filing  of  the  com- 
plaint nune  pro  tune  as  of  the  date  of  the  filing  the  lis  pendens 
where  the  creditor  is  not  a  party  to  the  action  and  has  no  oppor- 
tunity to  be  heard.  Weeks  v.  Tonies,  16  Hun,  349,  affirmed,  'J^ 
N.  Y.  601. 

In  an  action  to  foreclose  a  mortgage  given  by  one  of  the  defend- 
ants, in  which  action  another  defendant  claimed  possession  by  a 
paramount  title,  held,  that  since  the  plaintiffs  as  mortgagees  could 
not  maintain  ejectment  under  §  1494,  and  since,  as  between  these 
defendants,  the  right  to  the  possession  of  the  premises  would 
not  be  settled  in  that  action  but  must  be  tried  by  a  jury,  the 
complaint  should  be  dismissed  as  to  the  defendant  setting  up  a 
paramount  title.  Meigs  v.  Willis,  66  How.  466.  A  mortgagor 
having  before  suit  tendered  the  full  amount  then  due  and  brought 
the  same  into  court,  the  lien  of  the  mortgage  is  extinguished  to 


388  FORECLOSURE. 

Art.  5.     Matters  of  Practice. 


that  extent,  and  an  action  for  foreclosure  cannot  be  maintained 
by  reason  of  an  installment  subsequently  falling  due.  Gree7i  v. 
Fry,  93  N.  Y.  353.  Where  a  defendant  in  foreclosure  having  an 
interest,  which  is  alleged  in  the  complaint  to  be  subsequent  to 
the  mortgage,  sets  up  in  her  answer  facts  tending  to  establish  a 
paramount  right  of  dower,  and  introduces  evidence  on  the  trial 
tending  to  support  so  much  of  the  claim,  the  judgment  should 
either  dismiss  so  much  of  the  action,  as  to  such  defendant, 
as  relates  to  the  interest  claimed  by  her  to  be  paramount  to  the 
mortgage,  or  else  the  interest  should  be  excepted  from  the  opera- 
tion of  the  judgment  by  a  proper  statement.  Lanier  v.  Sjuith, 
37  Hun,  529.  The  question  as  to  whether  the  mortgagor  was  a 
purchaser  in  good  faith  under  the  Recording  Act,  and,  therefore, 
entitled  to  priority  over  an  earlier  deed,  which  has  been  subse- 
quently recorded,  cannot  be  raised  in  an  action  to  foreclose. 
Kcelcr  v.  McNeirncy,  6  Civ.  Pro.  R.  363. 

In  an  action  to  foreclose  a  mortgage  upon  lands  standing  in  the 
name  of  a  wife  to  secure  obligations  of  a  specified  amount  from 
the  husband,  a  prior  judgment  in  an  action  by  a  receiver  in  sup- 
plementary proceedings,  which  has  the  effect  of  impeaching  the 
title  of  the  wife  on  the  ground  of  fraud,  does  not  authorize  the 
court,  in  the  foreclosure  action,  to  increase  the  amount  secured  by 
the  mortgage,  and  direct  a  sale  and   payment  of  the  larger  sum 
out  of  the  proceeds.     Niagara  County  National  Bank  v.  Hooper, 
2  St.  Rep.  288.     Where  a  court  in  this  State  has  jurisdiction  over 
a  cause  of  action  and  the  parties,  it  may  decree  foreclosure  of  a 
mortgage,  although   part   of  the   premises   covered   by   it   are  in 
another  State ;  and  as  the  judgment  may  not  be  capable  of  exe- 
cution as  against  that  portion  of  the  property,  may  require  the 
mortgagor  to  execute  a  conveyance  to  the  purchaser,  and  where 
this  is  not  done  in  the  original  judgment,  the  court  has  power, 
after  sale,  to  amend  the  judgment  by  inserting  therein  such  a 
provision.      Union    Trust   Co.  v.  Olmstead,    102   N.   Y.   729.     The 
fact  that  by  the  terms  of  a  lease  the  lessor  had  the  right  to  insist 
upon  a  forfeiture,  is  no  defence  to  an  action  to  foreclose  a  mort- 
gage  on   the   interest   of  the   lessee   therein   against   the   latter's 
assignee.     Kribbs  v.  Alvord,  9  St.  Rep.  617. 

Subsequent  incumbrancers  made  parties  under  the  usual  alle- 
gations must  assert  their  claims  or  be  foreclosed.  Benjamin  v. 
Elmira,  etc.  R.  R.  Co.  49  Barb.  441.     If  one  holding  a  subsequent 


I 


FORECLOSURE.  389 


Art.  5.     Matters  of  Practice. 


mortgage  is  made  a  defendant,  he  may  answer  and  claim  to  have 
prior  mortgages  held  by  him  paid  from  the  proceeds  of  the  sale 
before  paying  plaintiff's  mortgage.  Doctor  v.  Smith,  16  Hun, 
245.  In  foreclosure  of  a  subsequent  mortgage,  holder  of  a  prior 
mortgage  cannot  be  compelled  to  litigate  a  controversy  between 
himself  and  another  defendant.  Fink  v.  Allen,  36  Supr.  Ct.  350- 
Foreclosure  may  be  had  for  interest,  although  less  than  $50  is 
due.  House  v.  Eiscnlord,  17  Week.  Dig.  203.  Acceptance  of  the 
interest  after  default  is  a  waiver  of  the  interest  clause.  Lawson 
V.  Barron,  18  Hun,  414.  Where  the  holder  of  a  junior  incum- 
brance tenders  the  amount  of  a  prior  incumbrance  and  demands 
transfer,  it  does  not  release  the  lien  of  the  prior  incumbrance,  but 
merely  puts  the  holder  in  a  position  to  compel  a  transfer.  Frost 
V.  Yonkers  Savings  Bank,  70  N.  Y.  553;  see  Dry  v.  Strong,  17 
Week.  Dig.  328;  Bloomingdalc  v.  Barnard,  7  Hun,  459;  McLean 
V.  Thompson,  18  Abb.  24. 

A  junior  mortgagee,  who  is  a  party  to  a  foreclosure,  may,  on 
motion  before  judgment,  and  on  tender  of  payment,  have  an 
order  for  assignment  to  him  of  the  senior  mortgage,  which  is  being 
foreclosed.  Twombly  v.  Cassidy,  82  N.  Y.  155.  Where  a  mort- 
gagor, having  sold  the  property  to  one  who  has  assumed  the 
mortgage,  requests  the  mortgagee,  after  the  mortgage  is  due,  to 
foreclose,  lest  the  property  should  become  insuf^cient,  the  mort- 
gagee is  bound  to  do  so,  or  the  mortgagor  will  be  discharged  from 
liability  on  his  bond.  Russell  v.  Weinberg,  4  Abb.  N.  C.  139.  So 
as  to  owner  of  mortgage  who  transfers  it  with  guaranty.  North- 
ern Insurance  Co.  v.  Wright,  13  Hun,  166.  See  Loomis  v.  Bul- 
heimer,  5  Abb.  N.  C.  263.  Where  the  condition  is,  that  on  failure 
of  the  mortgagor  to  pay  taxes,  the  mortgagee  may  do  so,  the  mort- 
gagee must  actually  pay  the  taxes  to  give  him  the  right  to  fore- 
close and  collect  them.      Williams  v.  Tozvnsend,  31  N.  Y.  411. 

The  court  cannot  release  against  the  provision  that,  by  reason 
of  default  in  interest,  the  principal  becomes  due.  Noyes  v. 
Clark,  7  Paige,  179;  Ferris  v.  Ferris,  28  Barb.  29;  Benfiett  v- 
Stevenson,  53  N.  Y.  508;  O' Conor  v.  Shipman,  48  How.  126.  See 
Asendorf  v.  Meyer  8  Daly,  278 ;  Dzvight  v.  Webster,  32  Barb.  47 ; 
Thurston  v.  Marsh  14  How.  572.  Money  paid  by  the  mortgagee 
to  redeem  the  premises  from  a  tax  sale  becomes  part  of  the  mort- 
gage debt,  which  may  be  enforced  by  foreclosure.  Kortright  v. 
Cady,  23   Barb.  490;    Brevoort  v.  Randolph,  7  How.  358;  Burr  v. 


390  FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


Vccdcr,  3  Wend.  412  ;  Eagle  Fire  Ins.  Co.  v.  Pell,  2  Edw.  Ch.  631  ; 
SidenburgiL  v.  Ely,  90  N.  Y.  257;  below,  11  Abb.  N.  C.  354. 
When,  although,  as  between  the  life  tenant  and  the  remainderman 
it  is  the  duty  of  the  former  to  pay  the  taxes,  still  the  requisites  be- 
tween them  cannot  destroy  the  right  of  the  mortgagee  to  pay 
taxes  and  add  the  amount  to  the  mortgage.  Rapdye  v.  Pritiee,  4 
Hill,  1 19;  Silver  Lake  Bank  v.  NortJi,  4  Johns.  Ch.  370 ;  Faure  v. 
Winans,  i  Hopk.  283.  If  a  mortgagee  pays  an  assessment  at  any 
time  previous  to  the  expiration  of  the  time  for  redemption,  he 
acquires  a  lien  therefor,  as  against  the  mortgagor.  Brevoort  v. 
Randolph,  7  How.  398.  But  w^here  the  bond  and  mortgage  con- 
tain no  covenant  to  pay  taxes  and  assessments,  the  mortgagor 
cannot,  on  foreclosure,  be  held  for  a  deficiency  arising  from  non-  %\ 

payment  of  taxes  and  assessments  accruing  after  a  sale  by  him  of 
the  premises.  Marshall  v.  Davis,  16  Hun,  606;  s.  c.  78  N.  Y.  414. 
Where  the  owner  of  a  bond  and  mortgage  assigned  them  as 
security  for  a  debt  less  than  their  full  amount,  and  the  assignee 
foreclosed,  claiming  only  the  amount  due  him,  and  obtains  judg- 
ment of  sale,  and  the  owner  subsequently  paid  the  amount  due 
the  assignee,  the  judgment  is  not  a  bar  to  an  action  of  foreclosure 
by  the  owner.  After  payment  of  the  assignee's  lien  the  mortgage 
is  restored  to  the  owner.  O' Dougherty  v.  Remington  Paper  Co. 
81  N.  Y.  496.  If  the  answer  in  foreclosure  raises  an  issue  against 
plaintiff  the  court  cannot  proceed  summarily  under  the  rule  and 
determine  whether  the  issue  be  material.  Stiiyvesant  v.  Broivn- 
ing,  33  Supr.  Ct.  203. 

Sub.   5.   No  other  Action   to   be   Brought  Without   Leave  cf 

THE  Court.     §  1628,  1630. 
§  1628.  Other  actions  for  mortgage  debt,  when  prohibited. 

While  an  action  to  foreclose  a  mortgage  upon  real  property  is  pending  or  after 
final  judgment  for  the  plaintiff  therein,  no  other  action  shall  be  commenced  or 
maintained,  to  recover  any  part  of  the  mortgage  debt,  without  leave  of  the 
court  in  which  the  former  action  was  brought. 

^  1630.  If  judgment  rendered  therein,  execution  must  be  returned. 

Where  final  judgment  for  the  plaintiff  has  been  rendered,  in  an  action  to  re- 
cover any  part  of  the  mortgage  debt,  an  action  shall  not  be  commenced  or  main- 
tained to  foreclose  the  mortgage,  unless  an  execution  against  the  property  of 
the  defendant  has  been  issued,  upon  the  judgment,  to  the  sheriff  of  the  county 
where  he  resides,  if  he  resides  within  the  State,  or,  if  he  resides  without  the 
State,  to  the  sheriff  of  the  county  where  the  judgment-roll  is  filed;  and  has  been 
returned  wholly  or  partly  unsatisfied. 


I 


FORECLOSURE.  39I 


Art.  5.     Matters  of  Practice. 


The  provision  of  §  1628  that  "  while  an  action  to  foreclose  a 
mortgage  upon  real  property  is  pending,  or  after  final  judgment  for 
the  plaintiff  therein,  no  other  action  may  be  commenced  or  main- 
tained to  recover  any  part  of  the  mortgage  debt  without  leave  of 
the  court,"  does  not  apply  to  a  case  where  the  action  for  fore- 
closure was  brought  in  a  foreign  jurisdiction.  New  York  Life 
Ins.  Co.  V.  Aitkin,  125  N.  Y.  660,  36  St.  Rep.  8.  Section  1628 
does  not  prevent  an  action  to  recover  a  deficiency  based  on 
an  agreement  made  after  foreclosure,  and  such  action  can  be 
maintained  without  leave  of  the  court.  FcrnscJiild  v.  Yuengling 
Brezving  Co.,  18  Misc.  49,  reversing  16  Misc.  27S. 

On  application  for  leave  to  sue  on  the  bond  made  within  twenty 
years  from  its  date,  the  premises  having  been  sold  on  foreclosure 
of  prior  mortgages  and  judgment  entered  for  foreclosure  upon  a 
mortgage  accompanying  the  bond,  it  was  held  that  leave  to  sue 
should  be  granted  notwithstanding  an  alleged  agreement  that 
defendant  vv^as  not  to  be  personally  liable,  as  the  Statute  of  Limi- 
tations had  not  run  against  the  bond  ;  the  delay  in  making  the 
application  did  not  constitute  laches.  ///  tlic  Matter  of  Applica- 
tion of  Howe,  41  St.  Rep.  877. 

A  party  is  not  entitled  as  of  right  to  both  remedies  at  the  same 
time,  that  is  to  foreclose  a  mortgage  and  an  action  on  the  bond, 
and  where  plaintiff  fails  to  establish  the  validity  of  the  mortgage 
he  is  not  entitled  to  recover  on  the  bond  sought  to  be  secured  by 
the  mortgage  although  the  execution  of  the  bond  is  averred  in 
the  complaint.  Dudley  v.  The  Congregation  of  the  Third  Order 
of  St.  Francis,  138  N.  Y.  451. 

Section  1628  shows  an  intention  on  the  part  of  the  Legislature 
to  place  a  restriction  upon  holders  of  bonds  secured  by  a  mort- 
gage which  is  in  process  of  foreclosure,  and  unless  cogent  reason 
is  presented  for  the  granting  of  an  order  of  the  court  under  such 
section,  granting  leave  to  a  bondholder  to  commence  an  action 
on  his  bonds  during  the  pendency  of  an  action  brought  to  fore- 
close the  mortgage  securing  the  same,  an  application  for  such 
order  should  be  denied.  Matter  of  Moore, 'ii  Hun,  389,  63  St. 
Rep.  380,  31  Supp.  no. 

The  provisions  of  the  Code  were  intended  to  control  the 
remedy  in  such  cases  (citing  §  1628)  within  the  territorial  limits 
of  the  State,  and  have  no  extra-territorial  force.  Mutual  Life 
Ins.  Co.  V.  Smith,  7   St.  Rep.  22.      The  mortgagee  must  exhaust 


392 


FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


his  remedy  in  his  action  of  foreclosure  before  he  can  be  allowed  his 
suit   at   law,    after  he   has  brought   such   an   action.      Nichols  v. 
SmitJi,  42  Barb.  381.      The  provision  contained  in  §  1628  applies 
only  to  the  holder  of  the  mortgage ;  it  does  not  apply  to  an  action 
by   a   mortgagor,    who,    before   foreclosure,    has    conveyed    to   a 
grantee,  who  assumed  the  mortgage,  in  which  action  the  grantor 
sues  the  grantee   for  the  amount   of  the  deficiency  he  has  been 
held   to   pay.      Comstock  v.   Drohaji,   71    N.    Y.    9;    Campbell  v. 
Smith,  71  N.  Y.  26.      Leave  to  prosecute  both  remedies  is  only 
given  in  extraordinary  cases.     Engle  v.  Underhill,  3  Edw.  Ch.  249. 
Such  leave  was  properly  granted  where  mistake  or  inadvertance 
was  shown.      KaJte  v.  Prentice,  13  Week.  Dig.  361.     Where  the 
second  mortgagee  was  not  a  party  to  the  foreclosure,  a  second 
foreclosure  was  allowed  to  be  brought  by  the  purchaser  under  the 
sale,  and  by  the  holder  of  a  mortgage  made  by  such  purchaser. 
Frankly n  v.  Hayward,  61    How.  43.     A  complaint  in  an  action 
against  a  person  who  has  assumed  payment  of  a  bond  and  mort- 
gage, for  deficiency  after  judgment,  is  not  demurrable  upon  the 
ground  that  leave  to  sue  was  obtained  after  the  commencement 
of  the  action,  such  leave  being  without  prejudice  to  proceedings 
already  had.     Earl  v.  David,  20  Hun,  527,   affirmed,   86  N.   Y. 
634.     Where  leave  of  the  court  is  necessary,  a  legal  or  equitable 
defence  will  not  be  allowed  to  defeat  the  application  unless  it  is 
substantially  free  from  controversy.      If  there  is  a  controversy,  it 
must  be  upon  the  trial  of  the  action.      In  re  Hallenbarton,  i  Law 
Bull.  12.     An  application  during  or  after  foreclosure  for  leave  to 
sue  persons  not  made  parties,  should  be  denied   if  the  course  of 
the  creditor,  in  delaying  the  enforcement  of  the  mortgage,  ren- 
ders the  enforcement  of  personal  liability  inequitable.     Application 
refused  for  leave  to  sue  the  personal  representatives  and  next  of 
kin  of  a  deceased  grantor,  who  were  not  parties  to  the  foreclosure. 
Matter  of  Collins,  17  Hun,  289.      Leave  to  bring  suit  for  a  defi- 
ciency  may   be  granted  nimc  pro  tunc,  upon   such   terms  as  are 
equitable,    where  the  plaintiff   has  sued  without   first    obtaining 
leave.     Earl  v.  David,  20  Hun,  527,  86  N.  Y.  634;  McKenan  v. 
Robinson,  20  Hun,  289,  84  N.  Y.  105.      If.  in  a  suit  against  the 
mortgagor  and  the  executor  of    a  grantee  of  a  portion   of  the 
premises,   no  judgment  for  a  deficiency  is    claimed  against  the 
latter,  a  separate  action  will  not  lie  against   him   therefor  without 
special  leave  of  the  court.      Schoficld  v.  Doscher,  lO  Hun,  582.  72 


FORECLOSURE.  393 


Art.  5.     Matters  of  Practice. 


N.  Y.  491.  An  action  upon  guaranty  of  the  mortgage  is  within 
the  provision,  and,  in  the  absence  of  authority  from  the  court, 
the  action  is  not  maintainable.  Kernan  v.  Frazier,  23  Alb.  L. 
Jour.  255.  The  court  may,  in  its  discretion,  grant  or  refuse 
leave  to  bring  an  action  at  law  to  recover  a  deficiency  arising  on 
a  sale  in  a  judgment  of  foreclosure,  in  which  no  provision  was 
made  as  to  a  deficiency.  Where  the  mortgagee  has  voluntarily 
refrained  from  asking  a  judgment  for  a  deficiency,  some  satisfac- 
tory reason  should  be  given  for  permitting  him  to  bring  a  sepa- 
rate action.  Equitable  Life  Assur.  Society  v.  Stevens,  63  N.  Y. 
341.  It  is  proper  to  allow  suit  to  be  brought  against  one  who 
was  a  non-resident  at  time  of  foreclosure.  Bartlett  v.  McNeil,  60 
N.  Y.  53.  Permission  to  sue  should  be  alleged  or  at  least  proved, 
Schoficld  V.  Doscher,  72  N.  Y.  491.  Leave  of  the  court  is  not 
necessary  where  the  foreclosure  is  by  advertisement.  Bush  v. 
Robbins,  23  Week.  Dig.  405. 

The  complaint  should  contain  a  distinct  averment,  in  the  terms 
of  the  statute,  that  no  proceedings  have  been  had  at  law  for  the 
recovery  of  the  debt,  or  any  part  thereof;  or,  if  such  proceedings 
have  been  instituted,  what  they  were  and  against  whom.  Pat- 
terson V.  Powers,  4  Paige,  549.  Where  the  complaint  stated  that 
no  proceedings  had  been  had  at  law  to  recover  the  amount  due 
on  the  bond  and  mortgage,  and  defendants  pleaded  a  judgment 
which  plaintiff  held  against  them  as  being  no  part  of  the  debt 
secured  by  the  bond  and  mortgage,  and  the  testimony  sustained 
the  plea;  held,  a  fatal  objection,  but  plaintiff  allowed  to  amend  if 
he  had  exhausted  his  remedy  at  law.  Lovett  v,  German  Reformed 
Church,  12  Barb.  67. 

If  the  complaint  shows  that  the  plaintiff  has  obtained  a  judg- 
ment for  the  debt,  but  does  not  show  that  he  has  exhausted  his 
remedy  upon  it,  the  defendant  may  demur  to  the  complaint;  or, 
if  the  fact  does  not  appear  upon  the  face  of  the  complaint,  he 
may  raise  his  objection  by  answer.  North  River  Bank  v.  Rogers, 
8  Paige,  648;  Shufclt  v.  Shufelt,  9  Paige,  137;  Lovett  v.  German 
Reformed  Church,  12  Barb.  6j.  The  provision  applies  not  only 
to  proceedings  against  the  original  mortgagor,  but  applies  where 
judgment  has  been  obtained  upon  a  security  given  by  a  third 
party.      Patterson  v.  Powers,  4  Paige,  549. 

After  a  final  judgment  in  a  foreclosure  action  an  ex  parte  order 
granting  leave  to  the  mortgagee  to  sue,  to  secure  payment  of  a 


394  FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


deficiency  arising  upon  the  sale  out  of  the  funds  belonging  to  the 
estate  of  the  mortgagor,  and  entered  as  of  a  prior  date  to  the 
commencement  of  the  action,  should  be  set  aside.  U.  S.  Life 
Ins.  Co.  V.  Poillon,  25  St.  Rep.  534. 

On  sale  in  partition,  part  of  the  proceeds  was  deposited  to  meet 
decedent's  debts ;  held,  that  an  action  to  apply  the  fund  to  the 
payment  of  a  deficiency  judgment  in  mortgage  foreclosure  could 
not  be  broueht  without  leave  of  the  court  in  which  the  foreclos- 
ure  was  brought.  In  such  an  action  the  complaint  must  allege 
that  such  leave  has  been  obtained.  United  States  Life  Ins.  Co.  v. 
Gage,  3  Supp.  398;  Haiiselt  v,  Fine,  18  Abb.  N.  C.  142. 

The  provision  of  §  1628   of  the  Code  of  Civil   Procedure  that  il 

while  an  action  to  foreclose  a  mortgage  upon  real  property  is 
pending  or  after  final  judgment  for  the  plaintiff  therein,  no  other 
action  shall  be  commenced  or  maintained  to  recover  any  part  of 
the  mortgage  debt,  without  leave  of  the  court  in  which  the 
former  action  was  brought,  does  not  prohibit  a  junior  mortgagee 
who  has  filed  a  notice  of  claim  to  surplus  moneys  arising  upon 
foreclosure  of  a  prior  mortgage,  and  is  a  party  to  proceedings  for 
the  distribution  of  such  surplus,  from  bringing,  without  leave  of 
court,  an  action  to  recover  the  debt  secured  by  his  mortgage. 
Wyckoffv.  Devlin,  12  Daly,  144. 

Section  1628  has  reference  to  the  original  debt  the  mortgage 
was  given  to  secure  and  does  not  require  leave  to  sue  on  a  judg- 
ment for  deficiency.  ScJmltz  v.  Mead,  29  St.  Rep.  203.  The 
section  has  reference  solely  to  a  foreclosure  conducted  in  this 
State  and  the  leave  must  be  obtained  in  this  State.  New  York 
Life  Ins.  Co.  v.  Aitkin,  36  St.  Rep.  8. 

An  application  for  leave  to  bring  action  against  a  person's  heirs 
to  enforce  a  deficiency  judgment  recovered  against  his  estate,  is 
one  which  rests  in  the  sound  discretion  of  the  court ;  and  where 
it  would  be  inequitable  to  allow  the  enforcement  of  the  judg- 
ment under  all  the  circumstances  of  the  case  as  they  existed  at  the 
time  of  the  application,  the  court  should  deny  the  motion.  U.  S. 
Life  Ins.  Co.  v.  Poillon,  27  St.  Rep.  899,  followed  Walton  v.  Grand 
Belt  Co.  1 1  Supp.  1 10. 

The  provision  of  §  1630  applies  to  a  judgment  by  confession. 
A  sale  and  judgment  which  in  that  section  would  prevent  an 
action  to  foreclose  a  mortgage  must  have  been  obtained  on 
account  of  the  mortgage  debt  or  some  part  thereof ;  it  need  not 


FORECLOSURE.  395 


Art.  5.     Matters  of  Practice. 


be  recovered  on  the  bond  and  mortgage  or  against  the  mortgagor. 
Guilford  v.  Crandall,  69  Hun,  414,  52  St.  Rep.  633. 

Sub.  6.  Receiver,  When  Appointed,  Powers  and  Duties. 
In  order  to  justify  the  appointment  of  a  receiver  of  mortgaged 
premises,  there  must  be  evidence  of  the  insufificiency  of  the  prop- 
erty to  satisfy  the  mortgage,  and  in  the  absence  of  such  evidence 
the  court  is  not  justified  in  taking  the  property  out  of  the  posses- 
sion of  the  mortgagor  pending  the  action.  An  affidavit  by  the 
attorney  of  the  pbJntiiT  to  the  effect  that  he  is  informed  by  plaintiff 
that  he  is  extremely  doubtful  whether  the  premises  would  sell  for 
enough  to  pay  the  amount  due  on  the  mortgage,  is  not  sufficient. 
Sickles  V.  Canary,  8  App.  Div.  308.  A  general  equitable  principle 
entitles  a  mortgagee  to  the  appointment  of  a  receiver  pending  his 
action  of  foreclosure,  so  far  as  to  preserve  the  rents  and  profits  of 
the  property  to  meet  any  deficiency  upon  the  sale;  but,  in  the  ab- 
sence of  a  clause  in  the  mortgage  pledging  the  rents  and  profits  as 
security  for  the  mortgage  debt,  the  mortgagor  is  entitled  to  them 
up  to  the  time  of  the  .sale  in  foreclosure,  and  his  right  can  only  be 
defeated  by  showing,  with  reasonable  certainty,  that  the  mortgaged 
property  is  an  inadequate  security  for  the  payment  of  the  mort- 
gage debt.  Where  the  question  as  to  the  appointment  of  a  receiver 
of  the  rents  and  profits  of  mortgaged  premises,  pending  an  action 
of  foreclosure,  arises  between  lienors  only,  the  moving  par':y  must 
show  a  superior  equity.  Where  a  party  omits  to  move  for  or 
fails  to  secure  the  appointment  of  a  receiver  pending  the  action, 
he  loses  all  title  to  the  rents  and  profits  which  accrue  before  the 
sale,  even  though  the  sum  realized  upon  the  sale  is  insufficient 
to  satisfy  his  judgment.     Ross  v.   Vcrnan,  6  App.  Div.  246. 

A  receiver  in  foreclosure  appointed  to  collect  the  rents,  issues 
and  profits,  is  appointed  where  it  does  not  seem  prudent  to  the 
court  that  the  defendant  should  be  allowed  to  collect  and  retain 
them,  and  it  is  his  duty  to  take  charge  of  the  property  pending 
the  litigation,  preserve  it  from  waste  and  destruction,  and 
receive  the  rents  and  profits.  Chautauqii  Co.  Batik  v.  White,  6 
Barb.  589;  Green  v.  Bostwick,  i  Sandf.  Ch.  185.  He  is  to  pro- 
tect and  care  for  the  property  entrusted  to  him  and  his  appoint- 
ment is  in  behalf  of  both  parties  to  the  action.  Hoivell  v.  Ripley, 
10  Paige,  43.  The  object  of  his  appointment  is  to  give  a  priority 
of  lien  on  the  rents  and  profits  of  the  premises  so  that  they  may 


396  FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


be  applied  to  payment  of  plaintiff's  claim.  Gillett  v.  Moody,  3 
N,  Y.  479;  Porter  v.  Williams,  9  N.  Y.  142.  And  a  plaintiff  will 
be  entitled  to  a  receiver  where  it  is  probable  that  the  premises  will 
not  on  a  sale,  bring  a  sum  sufificient  to  pay  the  debt  and  costs  of 
the  suit,  and  that  no  responsible  person  is  liable  for  the  de- 
ficiency. Sea  Fire  Ins.  Co.  v.  Stebbins,  8  Paige,  565  ;  Astor  v. 
Turner,  2  Barb.  444;  S.  C.  3  How.  225.  It  is  his  duty  to  act 
with  a  view  to  the  rights  of  all  parties  interested  and  to  pro- 
tect the  property  to  the  best  of  his  ability,  hidings  v.  Bruen, 
4  Sandf.  Ch.  417;  Lottimer  v.  Lord,  4  E.  D.  Smith,  183.  Re- 
ceivers in  foreclosure  are  appointed  with  great  caution  and  only 
in  clear  cases.  Warner  v.  Gouverncur,  i  Barb.  36 ;  SJiotwell  v. 
Smith,  3   Edw.  Ch.  588;  Jenkins  y.  Hinman,  5   Paige  Ch.  309. 

The  receiver  is  an  officer  of  the  court  appointed  on  behalf  of  all 
who  may  establish  an  interest  in  the  property;  the  property  in 
his  hands  is  in  the  custody  of  the  law.  Iddings  v.  Bruen,  4 
Sandf.  417;  Booth  v.  Clark,  58  U.  S.  323;  Lottimer  v.  Lord, 
4  E.  D.  Smith,  183.  He  has  no  powers  except  those  conferred 
upon  him  by  the  order  appointing  him.  Rider  v.  Vrooman,  12 
Hun,  299;  Verpla7ick  v.  Mercantile  Trust  Co.  2  Paige,  438; 
Matter  of  Eagle  Iron  Works,  8  Paige,  385. 

A  receiver  of  rents  and  profits  may  be  appointed  pendeiite  lite 
when  the  mortgage  is  insufficient,  and  the  party  personally  liable 
is  insolvent,  or  when  it  is  provided  by  the  deed  that  the  mort- 
gagee shall  have  the  rents  and  profits  after  default.  Jones  on 
Mortgages,  vol.  2,  §  15 16;  Shotwell  v.  Smith,  3  Edw.  Ch.  588; 
Warner  V.  Gouverneur,  i  Barb.  Ch.  36;  Clason  v.  Corley,  5  Sandf. 
Ch.  447;  Bank  of  OgdensburgJi  v.  Arnold,  5  Paige,  38;  Astor  v. 
Turner,  1 1  Paige,  436 ;  Sea  Ins.  Co.  v.  Stebbins,  8  Paige,  566 ; 
Hozuell  V.  Ripley,  10  Paige,  43  ;  Frc ling] luy sen  v.  Colden,  4  Paige, 
104;  Syracuse  City  Bank  v.  Tallman,  31  Barb.  201;  Mitchell  v. 
Bar t let t,  51  N.  Y.  447;  Smith  v.  Tiffany,  13  Hun,  673;  Clark  v. 
Binninger,  39  How.  363;  Miller  v.  Bowles,  2  T.  &  C.  568;  Rider 
V.  Bagley,  84  N.  Y.  461.  If  no  proceedings  are  taken  for  the 

appointment  of  a  receiver,  the  mortgagor's  right  to  the  rents  con- 
tinues until  after  foreclosure.  Howell  v.  Ripley,  10  Paige,  43 ; 
Lofsky  V.  Majer,  3  Sandf.  Ch.  69;  Mitchell  v.  Bartlett,  51  N.  Y. 
447;  Argall  v.  Pitts,  78  N.  Y.  239.  The  power  to  appoint  a 
receiver  of  the  rents  and  profits  of  mortgaged  property  was  in  the 
Court  of  Chancery  before  the  adoption  of  the  Code  of  Procedure. 


FORECLOSURE.  397 

Art.  5.     Matters  of  Practice. 

It  was  continued  by  that  Code,  and  is  not  abrogated  by  the 
Code  of  Civil  Procedure,  §  713,  defining  cases  in  which  receivers 
may  be  appointed,  but,  on  the  contrary,  is  reaffirmed  by  §  4,  de- 
claring that  "  each  of  the  courts  therein  named  shall  continue  to 
exercise  the  jurisdiction  and  powers  now  vested  in  it — except  as 
otherwise  prescribed."     Hollenbeck  v.  Donncll,  94  N.  Y.  342. 

The  appointment  of  a  receiver  is  not  a  matter  of  strict  legal 
right,  but  in  the  discretion  of  the  court,  and  will  not  be  exercised 
if  the  property  is  sufficient  to  pay  the  mortgage  debt,  or  the  mort- 
gagor is  responsible,  and  the  burden  of  proof  as  to  those  matters 
is  on  the  mortgagee.  Syracuse  Bank  v.  Tallman,  31  Barb.  201 ; 
Shotwell  V.  Smith,  3  Edw.  Ch.  588;  Jenkins  w.  Hinma?i,  5  Paige, 
309;  Burlingham  v.  Parce,  12  Hun,  144;  Rider  v.  Bagley,  84 
N.  Y.  461  ;  Frelinghuyscn  v.  Colde?i,  4  Paige,  204.  A  receiver  will 
not  be  appointed  ordinarily  as  against  a  mortgagee  in  possession. 
Quin  V.  Brit  tain,  3  Edw.  314;  Patten  v.  Accessory  Trust  Co.  4 
Abb.  237;  Bolles  v.  Duff,  35  How.  481  ;  Sea  Ins,  Co.  v.  Stebbins, 
8  Paige,  565  ;  N.  V.  Life  Ins.  Co.  v.  Glass,  50  How.  88.  There 
must  have  been  default  as  to  some  portion  of  the  mortgage  debt 
before  a  receiver  will  be  appointed  and  suit  brought  to  foreclose. 
Howell  V.  Ripley,  10  Paige,  43;  Quincy  v.  Cheesernan,  4  Sandf. 
Ch.  405;  Astor  V.  Turner,  11  Paige,  436;  Lofsky  v.  Majer,  3 
Sandf.  Ch.  69;  Bank  of  Ogdensburgh  v.  Arnold,  5  Paige,  38. 
And  then  a  receiver  of  only  a  parcel  will  be  appointed  if  that  will 
protect  the  plaintiff.  Hollenbeck  v.  Donnell,  94  N.  Y.  342.  A 
receiver  in  foreclosure  is  not  liable  for  work  done  by  an  adjoining 
owner  engaged  in  excavating  to  make  the  wall  of  the  mortgaged 
property  safe.  Wyckoff  v.  Scofield,  103  N.  Y.  630.  The  receiver 
appointed  at  the  instance  of  a  prior  incumbrancer  is  entitled  to 
receive  the  rents  and  profits  until  the  prior  mortgagee  takes  pos- 
session or  has  a  receiver  appointed.  Post  v.  Dorr,  4  Edw.  412; 
Washington  Life  Ins.  Co.  v.  Fleischauer,  10  Hun,  117;  Howell  v. 
Ripley,  10  Paige,  43.  The  party  appointing  a  receiver  obtains  a 
lien  on  the  rents  and  profits.  Astor  v.  Turner,  11  Paige,  436; 
Ranny  v.  Peyser,  83  N.  Y.  i.  The  mortgagee  can  only  be  entitled 
to  the  rents  and  profits  by  commencing  action  and  obtaining 
appointment  of  a  receiver,  and  then  will  be  confined  to  the  rents 
and  profits  accruing  during  the  pendency  of  the  suit.  Argall  v. 
Pitts,  78  N.  Y.  239;  Rider  v.  Bagley,  84  N.  Y.  461  ;  Hollenbeck 
V.  Donnell,  94  N.   Y.    342 ;    Wyckoff  v.    Scofield,  98   N.   Y.   475 ; 


398 


FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


Stillman  v.  Van  Beiiren,  lOO  N.  Y.  439;  Mutual  Life  Ins.  Co.  v. 
Belknap,  19  Abb.  N.  C.  345. 

It  is  said  a  receiver  may  be  appointed  after  the  mortgagor  has 
made  a  general  assignment.  Uphani  v.  Lewis,  i  Law  Bull.  86. 
Where  taxes  were  unpaid  and  a  sale  had  been  made  for  their  non- 
payment, insurance  was  neglected  and  adequacy  of  security 
doubtful,  a  receiver  was  appointed.  Wall  Street  Ins.  Co.  v. 
Loud,  20  How.  95.  If  a  mortgagor  becomes  bankrupt,  and  is 
exercising  the  right  to  cut  timber  in  bad  faith,  he  may  be  en- 
joined. Ensign  v.  Colburn,  1 1  Paige,  503.  As  a  defence,  the 
mortgagor  must  show  the  property  sufficient  to  pay  the  mortgage, 
or  some  valid  defence  which  is  disclosed.  Sea  Ins.  Co.  v.  Stcb- 
bins,  8  Paige,  565  ;  Lofsky  v.  Maj'er,  3  Sandf.  Ch,  69.  A  mort- 
gagor who  has  parted  with  his  interest  in  the  premises  cannot 
successfully  oppose;  the  opposition  must  be  made  by  a  party 
having  an  interest.  Wall  Street  Fire  Ins.  Co.  v.  Loud,  20  How, 
95.  As  to  appointment  of  receiver  for  a  corporation  defendant 
in  foreclosure,  see  Code,  §  1810;  Laws  1883,  chap.  378.  A  receiver 
appointed  in  such  an  action  has  paramount  rights  to  rents  over  a 
receiver  appointed  in  an  action  to  sequestrate  by  §  713,  subdi- 
vision I  of  the  Code.  A  receiver  may  be  appointed  before  judg- 
ment, and  his  powers  will  continue  after  judgment.  Astor  v. 
Turner,  11  Paige,  436.  It  is  only  in  special  cases,  however,  that  a 
receiver  will  be  appointed  without  notice.  McCarthy  v.  Peake,  6 
Abb.  164.  By  §  714  a  receiver  can  only  be  appointed  without  no- 
tice where  order  of  publication  has  been  made  pursuant  to  §  438. 

The  plaintiff  cannot  collect  rents  from  the  owner  of  the  equity 
or  from  the  receiver,  for  a  junior  incumbrancer.  Astor  v.  Turner, 
II  Paige,  436;  Rider  v.  Bagley,  84  N.  Y.  467;  Hozvell  v.  Ripley, 
10  Paige,  33;  Hayes  v.  Dickinson,  9  Hun,  277;  Washington  Life 
Ins.  Co.  V.  Flcischauer,  10  Hun,  117.  The  court  may  order  ten- 
ants to  attorn  to  a  receiver.  Seaman'' s  Bank  v.  Quinn,  i  Law 
Bull.  'j'j.  A  receiver  should  compel  tenants  not  parties  to 
attorn.  Bozvery  Savings  Bank  v.  Richards,  3  Hun,  366,  appeal 
dismissed,  68  N.  Y.  637.  If  the  grantee  of  a  mortgagor,  not  liable 
for  the  debt,  takes  the  rents  and  profits  and  delays  the  litigation, 
and  there  is  a  deficiency,  he  may  be  directed  to  pay  to  plaintiff 
enough  to  satisfy  the  debt,  even  if  no  receiver  has  been  appointed. 
Ferguson  v.  Kimball,  3  Barb.  Ch.  616;  Bank  of  Utica  v.  Ftnch^ 
3  Barb.  Ch.  293. 


I 


FORECLOSURE.  399. 


Art.  5.     Matters  of  Practice. 


Where  a  receiver  is  appointed,  but  not  for  the  benefit  of  any 
particular  party  to  the  action,  rents  and  profits  must  be  applied 
to  the  claims  in  the  order,  of  seniority.  Ranney  v.  Peyser ^  20 
Hun,  II;  Keogh  v.  McManus,  34  Hun,  521,  A  receiver  must 
pay  over  all  rents  collected  by  him  prior  to  the  sale  of  the  mort- 
gaged premises,  pursuant  to  the  judgment  of  foreclosure  as 
directed  by  said  judgment.  Those  collected  after  the  convey- 
ance belong  of  right  to  the  purchaser  of  the  premises.  The  rents 
in  the  hands  of  the  receiver,  collected  previous  to  the  convey- 
ance, belong  either  to  plaintiff  or  to  the  persons  who,  before  the 
sale,  owned  the  fee  of  the  mortgaged  premises.  Nichols  v.  Fos- 
ter, 9  Week.  Dig.  468.  A  party  to  the  action  may  be  appointed 
receiver.  Belles  v.  Duff,  37  How.  162.  It  is  the  duty  of  the 
receiver  to  protect  the  property,  hidings  v.  Bruen,  4  Sandf.  223. 
And  to  apply  to  the  court  for  instructions  before  exercising 
unusual  discretion.  Parker  v.  Browning,  8  Paige,  388.  And  he 
should  collect  rents.  Frelinghiiysen  v.  Colden,  4  Paige,  204; 
Astor  V.  Turner,  3  How.  225;  Steele  v.  St  urges,  5  Abb.  442; 
Foster  v.   Toivnsend,  2  Abb.  N.  C.  29. 

The  act  of  1883  in  relation  to  receivers  of  corporations,  includ- 
ing the  second  section  thereof  relating  to  receivers'  fees,  applies 
only  to  receivers  of  corporations  appointed  in  bankruptcy,  and  a 
receiver  appointed  in  an  action  to  foreclose  a  mortgage,  executed 
by  a  corporation,  is  not  entitled  to  the  fees  specified  in  the  sec- 
tion. The  allowance  of  commissions  to  such  a  receiver  is  gov- 
erned by  the  Code,  §  3320,  providing  for  the  allowance  by  the 
court  or  the  judge  where  not  otherwise  prescribed  by  statute. 
United  States  Trust  Co.  v.  N.  V.,  W.  S.  &  B.  R.  R.  Co.ioi  N.  Y. 
478,  citing  71  N.  Y.  396,  94  N.  Y.  342,  99  N.  Y.  83.  It  is  not 
necessary  in  foreclosure  of  an  action  on  property,  belonging  to  a 
corporation,  to  serve  a  copy  of  the  motion  papers,  etc.,  on  the 
receiver.  Whitney  v.  N.  V.  &  Atlantic  R.  R.  Co.  5  Civ.  Pro.  R. 
118.  A  receiver  of  rents  and  profits,  appointed  in  a  foreclosure 
suit,  has  no  power,  without  the  order  of  the  court,  to  lessen  the 
funds  in  his  hands  by  the  expenditure  for  repairs.  It  seems  that, 
if  necessary  for  the  protection  of  the  property,  the  court  may 
direct  such  repairs.  Wyekoff  v.  Seofield,  103  N.  Y.  630.  The 
court  has  no  power  to  order  debts  already  collected  and  in  pos- 
session of  the  owner  to  be  paid  over  and  applied  to  payment  of 
the  mortgage  debts.      Wyekoff  v.  Seofield,  98  N.  Y.  475. 


400 


FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


Such  receivers  possess  and  exercise  the  authority  of  receivers 
appointed  by  the  Court  of  Chancery  and  possess  no  legal  powers; 
they  are  officers  of  the  court  merely  and  their  functions  are  limited 
to  the  care  and  preservation  of  the  property  committed  to  their 
charge,  and  they  possess  no  authority  except  such  as  the  orders 
of  the  court  confer;  this  power  of  the  appointment  of  a  receiver 
is  incidental  to  the  jurisdiction  of  the  court,  does  not  depend 
upon  the  statute  and  is  not  affected  by  the  character  of  the  par- 
ties before  it,  whether  in  an  individual  or  a  corporation,  or  by 
the  nature  of  the  property ;  it  is  most  commonly  exercised  in 
foreclosure  suits  where,  by  reason  of  the  insuf^ciency  of  the  secu- 
rity, it  is  necessary  to  impound  the  rents  and  profits  of  the  mort- 
gaged property  during  the  litigation  in  order  that  they  may,  after 
the  decree  and  sale,  be  applied  upon  the  debt  for  the  security  of 
the  mortgage.  Decker  v.  Gardner,  124  N.  Y.  338,  citing  Herring 
V.  New  York,  L.  E.  &"  W.  R.  R.  Co.  105  N.  Y.  340;  Keeney  v. 
Hojue  Ins.  {T*?.  71  N.  Y.  396;  Hollenbeck  v.  Donnell,  94  N.  Y.  342; 
United  States  Trust  Co.  v.  A^.  K,  W.  S  &  B.  Ry.  Co.  loi  N.  Y.  478. 

A  receiver  of  rents  and  profits  in  foreclosure  is  entitled  to  the 
rents  of  the  mortgaged  property  which  accrued  during  the  pend- 
ency of  the  action,  although  prior  to  his  appointment,  as  against 
a  receiver  of  the  mortgagor  appointed  in  supplementary  proceed- 
ings. Donlon& Miller  Mfg.  Co.  v.  Cannella,  89  Hun,  21,  34  Supp. 
1065,  69  St.  Rep.  8.  Where  an  injunction  restraining  collection 
of  the  rents  by  a  receiver  appointed  in  another  action  was  vacated, 
and  such  receiver  was  subsequently  appointed  receiver  in  the 
foreclosure  action,  it  was  held  that  rents  collected  by  him  be- 
tween the  order  vacating  the  injunction  and  his  subsequent  ap- 
pointment should  be  accounted  for  in  the  foreclosure  action. 
Volkening  v.  Brandt,  14  Misc.   156,  35  Supp.  797. 

The  rule  that  the  parties  to  a  mortgage  containing  a  clause 
providing  for  the  appointment  of  a  receiver,  had  thereby  made  the 
rents  of  the  premises  a  part  of  the  security,  and  that,  therefore, 
the  mortgagee  was  entitled  to  apply  for  the  appointment  of  a 
receiver,  was  applied  in  MacKellar  v.  Rodgers,  52  Supr.  Ct.  360, 
and  in  Byson  v.  James,  55  Supr.  Ct.  374.  Appeal  was  dismissed  in 
the  latter  case,  no  N.  Y.  633,  but  it  was  held  in  De  Generv. 
Stiles,  25  St.  Rep.  422;  s.  c.  6  N.  Y.  Supp.  474,  that  where  the 
security  was  ample,  although  the  mortgage  contained  a  receiver- 
ship clause,  the  court  would  not  appoint  a  receiver. 


FORECLOSURE.  4OI 


Art.  5.     Matters  of  Practice. 


A  purchaser  at  foreclosure  is  entitled  to  the  rents  from  the  date 
of  the  delivery  of  the  deed,  and  where  a  receiver  has  been 
appointed  and  has  collected  rent  payable  in  advance,  it  was  held 
that  the  receiver  was  entitled  only  to  so  much  thereof  as  had 
actually  accrued  when  the  deed  was  delivered,  and  on  a  hearing 
upon  an  application  by  the  purchaser  for  an  apportionment  of  the 
rent,  the  owner  of  the  equity  of  redemption  may  be  entitled  to 
be  heard.      Cowan  v.  Arnold,  35  St.  Rep.  134. 

Sub.  7.  Costs. 

If  a  tender  is  made  before  judgment,  either  party  may  apply 
to  the   court   to  fix  the  amount  of  costs.     Barlow  v.  Cleveland, 
16    How.    364  ;    Pratt   v.    Ramsdcll,   16    How.    59  ;    Stevens   v. 
Veriajte,  2   Lans.  90 ;  Morris  v.  Wheeler,  45   N.  Y.  708.     It  has 
been  held  that  the  provision  of  the  Code  relating  to  tender  does 
not  apply  to  equity  cases.     N.  Y.  Fire,  etc.  Co.  v.  Burr  ell,  9  How. 
398.      But  the  costs  must  be  tendered  to  avail  defendant  in  an 
answer  of  tender.     Eaton  v.  Wells,  82  N.  Y.  576.      It  is  said  ten- 
der does  not  cut  off  the  right  to  an  allowance.     Astor  v.  Palache, 
49  How.  231.     See  9  How.  398,  supra.     An  offer  of  judgment 
may  be  made,  as  in  any  other  action,  in  a  foreclosure  case,  where 
judgment  is  asked  for  deficiency.     Bathgate  v.  Haskin,  63  N.  Y. 
261.     See,  however,  Penfieldv.  James,  56  N.  Y.  659.      Costs  are 
in  the  discretion  of  the  court  under  §  3230.      Reimer  v.  Dederick, 
4  Week.  Dig.  230 ;   Church  v.  Kid,   3    Hun,  254;  Lossee  v.  Ellis, 
13    Hun,  657;  Morris  v.    Wheeler,  45    N.   Y.    708;    Netvcomb  v. 
Hale,  12  Abb.  N.  C.  338.      One  who  unreasonably  defends  may 
be  charged  with  costs.      O' Hara  v.  Brophy,2\  How.  379;  Barker 
V.  Burton,  67    Barb.   458;     Gallagher    v.    Egan,    2    Sandf.    742; 
Jones  V.  Phelps,  2  Barb.  Ch.  360.      And   costs  will  ordinarily  be 
granted   to  the  mortgagee  out  of  the  fund.      Slee  v.  Manhattan 
Co.     I  Paige,  48;   Vroom  v.  Ditmas,  4  Paige,  526;  Boyd  v.  Dodge, 
10  Paige,  42;  Chamberlain  v.  Dempsey,   36  N.   Y.    144.     Where 
one  has  been   made  a  defendant  improperly  he  may  have  costs 
against  plaintiff.      Nelson  v.  Montgomery,  i   Edw.  657;  Millandon 
v.  Brugiere,  11   Paige,  163;  Rosa  v.  Jenkins,  31   Hun,  384.      It  is 
not  error  to  allow  costs  in   foreclosure  cases  to  defendants  who 
are  successful  in  defeating  a  judgment  for  deficiency,  or  in  reduc- 
ing the  amount  claimed   to  be  due  upon   the  mortgage.     Bockes 
V.  Hathorn,  17   Hun,   87.      But  the   court  will   not   impose  costs 
[Special  Actions  —  26.] 


402  FORECLOSURE. 


Art.  5.     Matters  of  Practice. 


where  parties  intervene  for  good  cause,  although  unsuccessful. 
West  V.  West,  etc.  Co.  7  St.  Rep.  386.  Although  costs  in  actions 
of  foreclosure  are  in  the  discretion  of  the  court,  yet  if  it  appears 
that  such  discretion  has  been  exercised  under  an  erroneous  view 
of  the  law  affecting  the  rights  of  the  parties,  it  is  the  duty  of  the 
Appellate  Court  to  correct  the  error.  Morris  v.  Wheeler,  45 
N.  Y.  708.  The  plaintiff  is  entitled,  as  a  matter  of  right,  to  the 
percentages  given  by  §  3252  of  the  Code.  Hunt  v.  Middlebrook, 
14  How.  300.  But  they  are  not  taxable  to  defendant.  Down- 
ing v.  Marshall,  37  N.  Y.  380;  Williajns  v.  Hernon,  13  Abb.  297. 
It  is  held  in  Rosa  v.  Jenkins,  31  Hun,  384,  and  O'Neilw.  Gray, 
39  Hun,  566,  that  only  two  and  a  half  per  cent  extra  allowance 
can  be  given  in  foreclosure.  It  was  so  held  under  the  old  Code 
in  Htmi  v.  Chapman,  62  N.  Y.  333  ;  Sviythe  v.  Rowe,  Abb.  Ann. 
Dig.  1882,  p.  III.  But  see  Bockes  v.  Hathorn,  17  Hun,  87.  The 
allowance  may  be  made  on  application  for  judgment,  and  special 
notice  is  not  necessary.  Walsh  v.  Weidoificld,  3  Daly,  334. 
Allowance  should  not  be  granted  before  amount  due  is  computed. 
Citizens'  Savings  Bank  V.  BancJi,  17  St.  Rep.  79.  An  allowance 
may  be  made  on  final  judgment  on  demurrer.  McDonald  v. 
Mallory,  46  Supr.  Ct.  58 ;  Dc  Stuckle  v.  Tehuantepec  R.  R.  Co,  30 
Hun,  34.  As  to  amount  of  costs  which  may  be  taxed  on  default, 
see  Armstrong  v.  Burdock,  17  Alb.  L.  J.  429.  A  defendant 
against  whom  no  demand  is  made  for  a  personal  judgment  is  not 
allowed  costs.  McRoberts  v.  Poolcy,  12  St.  Rep.  107.  The  fol- 
lowing portion  of  §  3252  regulates  the  percentages  to  be  allowed 
where  only  a  portion  of  the  mortgage  debt  is  due. 

In  an  action  to  foreclose  a  mortgage  upon  real  property,  where  a  part  of  the 
mortgage  debt  is  not  due,  if  the  final  judgment  directs  the  sale  of  the  whole  prop- 
erty, as  prescribed  in  section  1637  of  this  act,  the  percentages,  specified  in  this 
section,  must  be  computed  upon  the  whole  sum  unpaid  upon  the  mortgage. 
But  if  it  directs  the  sale  of  a  part  only,  as  prescribed  in  section  1636  of  this  act, 
they  must  be  computed  upon  the  sum  actually  due  ;  and  if  the  court  thereafter 
grants  an  order,  directing  the  sale  of  the  remainder,  or  a  part  thereof,  the  per- 
centages must  be  computed  upon  the  amount  then  due  ;  but  the  aggregate  of  the 
percentages  shall  not  exceed  the  sum  which  would  have  been  allowed,  if  the 
entire  sum  secured  by  the  mortgage  had  been  due,  when  final  judgment  was 
rendered. 

A  finding  by  a  referee  that  the  plaintiff  have  his  costs  of  this 
action  in  foreclosure  does  not  authorize  the  entry  of  costs  person- 
ally against  anyone.     Case  v.  Mannis,  33  St.  Rep.  44. 


FORECLOSURE.  403 


Art.  6.     Reference  to  Compute  Amount  Due. 


An  order  should  not  be  made  granting  an  extra  allowance 
before  the  amount  upon  which  it  is  to  be  computed  has  been  fixed 
and  determined  and  without  giving  any  percentage  to  be  awarded. 
Citizens   Savings  Bank  v.  Bancr,  14  Civ.  Pro.  R.  340. 

A  leasehold  interest  is  not  real  property  and  an  action  to  fore- 
close the  mortgage  thereon  is  therefore  not  within  the  restrictions 
as  to  extra  allowances  in  subdivision  }  of  §  3253  of  the  Code. 
Huntington  v.  Moore,  36  St.  Rep.  541. 

The  expense  of  obtaining  an  unofificial  search  of  title  is  not 
taxable  as  an  item  of  disbursement  in  foreclosure.  It  is  not 
a  necessary  expense  taxable  according  to  the  practice  of  the 
court  or  by  express  provision  of  law  within  the  meaning  of  §  3256 
with  reference  to  the  disbursements  which  may  properly  be 
included  in  a  bill  of  costs.  Equitable  Life  Assurance  Co.  v. 
HtigJiec,  125  N.  Y.  106. 

ARTICLE  VI 
Reference  to  Compute  Amount  Due. 

Sub.  I.  Order  of  reference.     Rules  60,  79. 
2.  Duties  and  report  of  referee. 

Sub.    I.     Order  of  Reference. 

Riile  60.  Failure  to  ans\7er  on  mortgage  foreclosure ;  reference ;  judg- 
ment on. 

If,  in  an  action  to  foreclose  a  mortgage,  the  defendant  fails  to  answer  within 
the  time  allowed  for  that  purpose,  or  the  right  of  the  plaintiff,  as  "tated  in  the 
complaint,  is  admitted  by  the  answer,  the  plaintiff  may  have  an  order  referring 
it  to  some  suitable  person  as  referee  to  compute  the  amount  due  to  the  plaintiff, 
and  to  such  of  the  defendants  as  are  prior  incumbrancers  of  the  mortgaged 
premises,  and  to  examine  and  report  whether  the  mortgaged  premises  can  be 
sold  in  parcels,  if  the  whole  amount  secured  by  the  mortgage  has  not  become 
due.  If  the  defendant  is  an  infant,  and  has  put  in  a  general  answer  by  his 
guardian,  or  if  any  of  the  defendants  are  absentees,  the  order  of  reference  shall 
also  direct  the  person  to  whom  it  is  referred  to  take  proof  of  the  facts  and  cir- 
cumstances stated  in  the  complaint,  and  to  examine  the  plaintiff  or  his  agent, 
on  oath,  as  to  any  payments  which  have  been  made,  and  to  compute  the  amount 
due  on  the  mortgage  preparatory  to  the  application  for  judgment  of  foreclosure 
and  sale. 

When  no  answer  is  put  in  by  the  defendant  within  the  time  allowed  for  that 
purpose,  or  any  answer  denying  any  material  facts  of  the  complaint,  the  plain- 
tiff, after  the  cause  is  in  readiness  for  trial,  as  to  all  the  defendants,  may  apply 
for  judgment,  at  any  Special  Term,  upon  due  notice  to  such  of  the  defendants 
as  have  appeared  in  the  action,  and  without  putting  the  cause  on  the  calendar. 


404 


FORECLOSURE. 


Art.  6.     Reference  to  Compute  Amount  Due. 


The  plaintiff  in  such  case,  when  he  moves  for  judgment,  must  show,  by  affi- 
davit or  otherwise,  whether  any  of  the  defendants  who  have  not  appeared  are 
absentees,  and,  if  so,  he  must  produce  the  report  as  to  the  proof  of  the  facts  and 
circumstances  stated  in  the  complaint,  and  of  the  examination  of  the  plaintiff  or 
his  agent,  on  oath,  as  to  any  payments  which  have  been  made.  And  in  all  fore- 
closure cases  the  plaintiff,  when  he  moves  for  judgment,  must  show  by  affidavit, 
or  by  the  certificate  of  the  clerk  of  the  county  in  which  the  mortgaged  premises 
are  situated,  that  a  notice  of  the  pendency  of  the  action,  containing  the  names  of 
the  parties  thereto,  the  object  of  the  action,  and  a  description  of  the  property  in 
that  county  affected  thereby,  the  date  of  the  mortgage  and  the  parties  thereto, 
and  the  time  and  place  of  recording  the  same,  has  been  filed  at  least  twenty  days 
before  such  application  for  judgment,  and  at  or  after  the  time  of  filing  of  the 
complaint,  as  required  by  law. 

Rule  79.  Referee,  who  may  be. 

Except  in  cases  provided  for  by  section  loii  of  the  Code  of  Civil  Procedure, 
no  person,  unless  he  is  an  attorney  of  the  court  in  good  standing,  shall  be  ap- 
pointed sole  referee  for  any  purpose  in  any  pending  action  or  proceeding.  Nor 
shall  any  person  be  appointed  a  referee  who  is  the  partner  or  clerk  of  the  at- 
torney or  counsel  of  the  party  in  whose  behalf  such  application  for  such  appoint- 
ment is  made,  or  who  is  in  any  way  connected  in  business  with  such  attorney  or 
counsel,  or  who  occupies  the  same  office  with  such  attorney  or  counsel. 

Under  Code  of  Civil  Procedure,  §  90,  no  person  holding  the  office 
of  clerk,  deputy  clerk,  special  deputy  clerk  or  assistant  in  the 
clerk's  office  of  a  court  of  record  or  of  the  Surrogate's  Court  in 
either  New  York  or  Kings  county  can  be  appointed  referee  except 
by  consent.  In  Kings  county,  all  sales  made  under  Laws  1876, 
chapter  439,  must  be  made  by  the  sheriff,  except  where  he  is  a 
party  or  both  parties  agree  to  the  appointment  of  a  referee. 
Kerrigan  v.  Force,  9  Hun,  185,  affirmed,  6?>  N.  Y.  381.  But  a 
sale  so  made  in  that  county  is  not  invalid,  and  the  purchaser 
obtains  a  good  title.  Dickinson  v.  Dickey,  14  Hun,  617;  Abbott 
V.  Curran,  98  N.  Y.  665. 

Referee's  fees  in  foreclosure  cannot  exceed  fifty  dollars  unless 
the  property  sells  for  ten  thousand  dollars  or  upwards,  in  which 
case  the  court  may  allow  additional  compensation.  §  3297.  He 
is  entitled  to  all  proper  disbursements.  Caryl  v.  Stafford,  69 
Hun,  318. 

The  court  cannot,  on  the  appointment  of  a  referee  to  compute, 
direct  that  on  the  coming  in  of  the  report  it  be  confirmed,  and 
usual  judgment  had  for  foreclosure  and  sale,  nor  can  an  extra 
allowance  be  granted  in  such  order.  Citizens  Savings  Bank  v. 
Bauer,  14  Civ.  Pro.  R.  340. 

An  order  of  reference  is  in  due  form  which  directs  the  referee 


FORECLOSURE.  405 


Art.  6.     Reference  to  Compute  Amount  Due. 


to  examine  the  plaintiff  as  to  the  truth  of  the  allegations  of  the 
complaint  where  it  was  averred  that  no  payments  had  been  made 
and  plaintiff  so  testified  before  the  referee.  Hat  fie  Id  v.  Malcolm, 
71  Hun,  51. 

Where  the  defendant  appears  but  fails  to  answer,  and  the  plain- 
tiff gives  due  notice  of  application  to  the  court  for  the  relief  de- 
manded in  the  complaint  or  for  judgment,  the  court  may,  instead 
of  computing  the  amount  due,  refer  it  to  the  clerk  or  some  suit- 
able person  to  compute  the  amount  due  on  such  reference  ;  this  is 
not  such  a  new  and  independent  proceeding  as  to  require  new 
notice  to  the  defendant,  nor  need  it  be  executed  in  the  county  in 
which  the  action  is  triable.  Defendants  who  have  not  appeared 
are  not  entitled  to  notice.  Kelly  v.  Searing,  4  Abb.  354.  The 
affidavit  to  obtain  reference  to  compute  amount  due  should  state 
that  no  answer  has  been  received,  whether  moneys  secured  have 
all  become  due  and  payable,  and  whether  any  defendants  are 
absentees  or  infants.  Anonyinous,  3  How.  158.  There  can  be  no 
judgment  rendered  against  a  non-resident  defendant  who  does 
not  appear  and  who  has  not  been  personally  served  with  a  sum- 
mons, except  upon  the  report  of  a  referee  as  to  the  truth  of  the 
matters  stated  in  the  complaint.  Cornhig-  v.  Baxter,  6  Paige, 
178.  And  the  reference  and  examination  must  be  had  though 
there  are  other  defendants  who  appear  and  contest  the  plaintiff's 
claim  and  who  have  a  common  interest  with  such  absentee  in  the 
defence  of  the  action.  Corning  v.  Baxter,  6  Paige,  178;  Hill  v. 
McReynolds,  30  Barb.  490.  Where  an  answer,  interposed  by  an 
infant,  alleges  payment  of  part  of  the  amount  due,  the  issue  thus 
formed  should  be  tried  by  the  court,  or  by  a  referee  appointed 
for  that  purpose,  and  cannot  be  summarily  disposed  of  under  the 
order  of  reference  under  the  rule.  Jackson  v.  Reon,6o  How.  103. 
The  action  cannot  be  referred  while  any  of  the  defendants, 
against  whom  the  plaintiff  seeks  a  judgment  for  a  deficiency,  have 
not  been  served  with  a  summons,  or  have  been  served  only  with 
a  notice  that  no  personal  claim  is  made  against  them  and  have 
not  appeared.     Goodyear  v.  Brooks,  2  Abb.  (N.  S.)  296. 

A  referee  to  compute  the  amount  due  should  take  the  oath 
of  office.  Exchange  Fire  Ins.  Co.  v.  Early,  4  Abb.  N.  C.  78, 
while  the  contrary  is  held  in  McGotvan  v.  Newman,  4  Abb. 
N.  C.  80. 

The  referee  should  not  act  until   the  order  has  been  actually 


4o6 


FORECLOSURE. 


Art.  6.     Reference  to  Compute  Amount  Due. 


entered  and  a  certified   copy  served   upon  him.     Bonner  v.  Mc- 
Phail,  31  Barb.  106;  see  Biicklin  v.  Chapin,  53  Barb.  488. 

The  nomination  of  a  referee  by  one  of  the  parties  is  not  an 
irregularity.      White  v.  Coulter,  3  T,  &  C.  608. 

Where  a  defendant  interposes  an  answer  raising  a  material  issue 
but  fails  to  appear  at  the  trial,  the  plaintiff  cannot  have  an  order 
of  reference  to  compute  the  amount  due  as  upon  a  default.  Ex- 
change Fire  Ins.  Co.  v.  Early,  4  Abb.  N.  C.  78.  In  such  case  the 
cause  should  be  placed  on  the  calendar  and  judgment  demanded 
upon  the  pleadings.  Van  Valen  m.  Laphain,  13  How.  Pr.  243; 
Boyce  v.  Brown,  7  Barb.  81  ;  Stuyvesant  v.  Browning,  33  N.  Y, 
Supr.  203. 

The  referee  may  be  required  to  compute  the  amount  due  on 
other  mortgages  in  case  they  are  set  up  in  the  answer,  and  ordered 
to  ascertain  whether  there  are  any  prior  liens  upon  the  premises. 
Chamberlain  v.  Dempscy,  36  N.  Y.  144,  reversing  7  Bosw.  540, 
15  Abb.  Pr.  I. 

An  order  of  reference  of  this  character  is  in  the  nature  of  an 
interlocutory  decree  and  must  be  made  by  the  court.  It  is  not 
appealable,  but  is  brought  up  for  review  on  appeal  from  a  final 
judgment.  Roberts  v.  White,  39  Supr.  272 ;  Johnson  v.  Everett, 
9  Paige  Ch.  636;  Dickenson  v.  Mitchell,  19  Abb.  Pr.  286;  Ubs- 
dellv.  Root,  3  Abb.  Pr.  142;  Harris  v.  Mead,  16  Abb.  Pr.  257. 

If,  however,  a  reference  is  directed  which  is  unauthorized,  an 
appeal  will  lie.  Cram  v.  Bradford,  4  Abb.  Pr.  193;  Whitaker  v. 
Desfossc,  7  Bosw.  678 ;   Chamberlain  v.  Dempscy,  36  N.  Y.   144. 

In  an  action  in  which  some  of  the  defendants  answered  and 
some  of  the  defendants  did  not,  a  reference  was  taken  and  the 
issues  decided  against  defendants,  but  the  amount  due  was  not 
computed.  The  plaintiff  then  applied  for  the  relief  demanded 
in  the  complaint,  on  notice,  and,  no  opposition  being  made,  took 
an  order  of  reference  to  compute  the  amount  due,  and,  after 
obtaining  the  report,  on  notice,  brought  the  cause  to  a  hearing 
and  took  judgment  of  foreclosure  and  sale.  Held,  that  he  was 
regular.     Hill  v.  McReynolds,  30  Barb.  490. 

As  against  a  non-answering  defendant  in  foreclosure,  it  is 
irregular  to  combine  in  one  reference  the  inquiry  as  to  the 
amount  due  with  the  trial  of  issues  between  the  plaintiff  and  other 
defendants,  and  to  enter  judgment  as  of  course  upon  the  report 
without  application  to  the  court   for  judgment  against   the  non- 


FORECLOSURE.  407 


Art.  6.     Reference  to  Compute  Amount  Due. 


answering  defendants.  In  a  suit  for  foreclosure  against  defend- 
ants one  of  them  appeared,  but  failed  to  answer,  while  the  others 
joined  issue.  The  cause  being  before  the  court  in  its  order  on 
the  calendar,  upon  notice  of  application  for  relief  as  against  non- 
answering  defendant,  there  being  no  one  in  attendance  upon 
his  behalf,  and  upon  notice  of  trial  as  to  the  others,  an  order  of 
reference  of  the  matter  in  controversy  was  made.  The  referee 
proceeded  to  report  not  only  upon  the  issue  in  the  cause  but 
upon  the  plaintiff's  right  to  relief  as  against  the  non-answering 
defendant,  and  upon  the  report  the  plaintiff  entered  judgment  as 
of  course  for  foreclosure  and  sale,  and  against  the  non-answering 
defendant  for  any  deficiency;  defendant  moved  to  set  aside  the 
judgment  for  irregularity ;  Jicld,  that  the  reference  was  regular  as 
to  the  defendant  who  joined  issue;  that  it  was  irregular  as  to  the 
defendant  who  did  not  answer,  there  being  no  issue  between  him 
and  the  plaintiff  to  direct  any  other  reference  than  one  to  ascer- 
tain and  report  the  amount  due,  and  that  the  defect  might  be 
cured,  after  judgment  and  sale,  by  a  reference  to  compute  the 
amount  due,  the  judgment  to  stand  until  the  coming  in  of  the 
report,  and  then  to  be  modified  conformably  thereto.  Cram  v. 
Bradford,  4  Abb.  193.  Where  there  are  absentees,  the  order 
should  direct  the  referee,  among  other  things,  to  take  proof  of 
the  facts  set  forth  in  the  complaint,  and  report  to  the  court ; 
plaintiff  must  adduce  legal  proof  —  secondary  evidence  will  not 
answer  —  and  to  report  the  proof  and  examinations  had  before 
him.      Wolcott  v.  Weaver,  3  How.  159. 

Sub.  2.   Duties  and  Report  of  Referee. 

The  referee  cannot  accept  an  affidavit  as  proof  of  the  amount 
due.     Security  Fire  his.  Co.  v.  Martin,  1 5  Abb.  479. 

The  evidence  of  the  witnesses  must  be  signed,  if  the  reference 
is  to  examine  plaintiff,  or  his  agent,  on  oath,  as  to  payments 
under  Rule  30,  which  requires  that,  in  references  other  than  for 
the  trial  of  the  issues  in  an  action,  or  for  computing  the  amount 
due  in  foreclosure  cases,  the  testimony  of  the  witnesses  must  be 
signed  by  them,  and  the  report  of  the  referee  filed  with  the  testi- 
mony. If  the  plaintiff  is  a  corporation,  its  officers  should  be 
examined,  in  a  proper  case,  as  to  the  payments  which  ought  to 
be  credited  on  the  mortgage.  Ontario  Bank  v.  Strong,  2  Paige, 
301.      In  case  of  infants  or  absentees,  the  plaintiff  must  prove  his 


408  FORECLOSURE. 


Art.  6.     Reference  to  Compute  Amount  Due. 


debt  before  the  reference,  in  the  same  manner  as  if  nothing  had 
been  admitted  in  the  answer.  Mills  v.  Dennis,  3  Johns.  Ch.  367. 
Husband  and  wife  may  testify  for  each  other  on  the  reference. 
Laingy.  Titus,  18  Abb.  388. 

The  first  duty  of  the  referee  under  the  statute,  aside  from  com- 
puting the  amount  due,  is  to  ascertain  whether  the  mortgaged 
premises  are  so  situated  that  they  can  be  sold  in  parcels,  without 
injury  to  the  interests  of  the  parties.  The  inquiry  is,  how  can  the 
mortgaged  premises  be  sold  so  as  to  realize  the  most  money?  The 
benefit  mentioned  and  intended  by  the  statute  is  a  benefit  to  all 
parties.  The  court  will  look  at  the  pleadings  and  other  papers 
before  it  on  the  hearing,  aside  from  the  report  of  the  referee,  in 
determining  the  manner  of  sale.  Gregory  v.  Campbell,  16  How. 
417.  The  referee,  in  case  the  premises  can  be  sold  to  advantage 
in  parcels,  should  report  that  fact  together  with  the  order  of 
sale.  Ferguson  v.  Kimball,  3  Barb.  Ch.  616;  Rathbone  v.  Clark, 
9  Paige  Ch.  648 ;  Perrine  v.  Striker,  7  Paige  Ch.  598 ;  Erie  Co. 
Savings  Bank  v.  Roop,  48  N.  Y.  292.  As  to  provision  for  sale  in 
parcels,  see  Rule  61  ;  also  §  1678.  In  an  action  to  foreclose  twelve 
mortgages  made  to  secure  future  advances,  the  trial  judge  found 
all  the  facts  for  the  plaintiff,  and  ordered  judgment  in  his  favor; 
but  instead  of  computing  the  amount  due  upon  the  mortgages  in 
court,  which  would  have  occupied  much  time,  sent  it  to  a  referee 
to  make  the  computation.  The  judgment  was  subsequently 
ordered  upon  the  findings  and  decision  of  the  court  and  the 
report  of  the  referee.     Held,  not   error.      Dow  v.  Lansdell,  10  St. 

Rep.  373- 

The  method  of  proving  the  bond  and  mortgage  on  a  reference 
to  compute  the  amount  due  on  failure  to  answer  is  considered  in 
Knickerbocker  Life  Ins.  Co.  v.  Hill,  16  Abb.  (N.  S.)  321. 

The  owner  and  holder  of  a  mortgage  may  pay  taxes  remaining 
unpaid  on  mortgaged  premises  in  order  to  protect  the  security, 
although  there  is  no  clause  in  the  mortgage  authorizing  him  to  do 
so,  and  the  claim  can  be  enforced  as  part  of  the  mortgaged  debt. 
Sidenbergv.  Ely,  go  N.  Y.  257;  Williams  v.  Townsheytd,  31  N.  Y. 
414.  The  referee  should  include  the  amount  of  such  taxes, 
assessments  or  liens  of  a  like  nature  and  include  with  interest, 
adding  it  to  the  mortgage  debt.  Robinson  v.  Ryan,  25  N.  Y.  320; 
Faure  v.  Wynans,  Hopk.  Ch.  283;  Burr  v.  Veeder,  3  Wend.  412. 
Where  the  mortgage  contained  a  clause  requiring  the  mortgagor 


FORECLOSURE.  409 

Art.  6.     Reference  to  Compute  Amount  Due. 

to  keep  the  premises  insured,  and  agreeing  that  in  case  of  failure 
to  do  so  the  mortgagee  should  insure,  moneys  paid  by  the  mort- 
gagee for  insurance  will  be  a  charge  on  the  premises  and  may  be 
included  in  the  amount  due;  otherwise  where  there  is  no  such 
agreement  in  the  mortgage.  Faurc  v.  Wynans,  Hopk.  Ch.  283. 
The  recital  in  the  bond  and  mortgage  is  evidence  of  its  execu- 
tion. Cooper  V.  Newland,  17  Abb.  342.  In  Knickerbocker  Life 
Ins.  Co.  V.  Hill,  16  Abb.  (N.  S.)  321,  a  number  of  cases  are  cited 
in  brief  of  counsel  for  appellant,  to  the  point  that  the  mortgage 
cannot  be  received  in  evidence  until  after  proof  of  the  bond  as 
follows :  Jackson  v.  Blodget,  5  Cow.  206 ;  Jackson  v.  Willard,  4 
Johns.  43;  Langdon  v.  Biiel,  9  Wend.  80;  Jackson  y.  Bronson, 
19  Wend.  325;  Green  v.  Hart,  i  Wend.  580 ;  Rose  v.  Baker,  13 
Barb.  230;  Parnialee  v.  Dann,  23  Barb.  461  ;  Cooper  v.  Nezvlaftd, 
17  Abb.  342;  Merritt  v.  BartJiolick,  36  N.  Y.  44.  The  mort- 
gagee must  either  produce  the  bond  or  account  for  its  absence ; 
the  want  of  possession  of  the  bond,  unexplained,  will  operate  as 
evidence  of  payment,  and  if  payment  be  alleged  as  a  defence,  the 
mortgagee  cannot  succeed.  Bergen  v.  Urbahn,  83  N.  Y.  49. 
But  the  loss  of  the  bond  may  be  shown,  and  if  there  is  a  pre- 
sumption of  loss,  the  mortgagee  may  have  judgment  of  foreclo- 
sure and  sale.  Stoddard  v.  Gaylor,  90  N.  Y.  575.  A  bond  of 
indemnity  is  not  required.  Blade  v.  Noland,  12  Wend.  173; 
Wright  V.  Wright,  54  N.  Y.  437;  Frank  v.  Wessels,6A,  N.  Y. 
155.  But  a  mortgage  may  be  valid  as  to  a  lien  upon  the  land 
without  a  bond.  Gaylord  v.  Knapp,  15  Hun,  87.  And  even 
though  a  bond  is  recited  in  the  mortgage  it  is  competent  to  show 
none  was  ever  executed.  Goodhue  v.  Berrien,  2  Sandf.  Ch.  630 ; 
Bergen  v.  Urbahn,  83  N.  Y.  49.  As  to  powers  and  duties  of 
referees  to  compute  amount  due,  see  Faure  v.  Winans,  Hopk. 
Ch.  283;  and  Harris  v.  Fly,  7  Paige,  421.  In  the  first  case  an 
order  was  made  to  report  as  to  whether  an  agreement  existed 
between  mortgagor  and  mortgagee  that  the  premises  should  be 
insured  at  the  expense  of  the  former.  In  the  latter,  that  on  an 
ordinary  reference,  where  the  complainant's  claim  to  priority  was 
questioned,  the  master  to  compute  the  amount  due  was  not 
authorized  to  settle  the  priority  between  the  parties,  but  must 
leave  it  for  the  decision  of  the  court  upon  the  hearing.  The 
amount  due  on  the  mortgage  for  principal  and  interest  may  be 
collected,  though  it  exceed  the  penalty  of  the  bond.     Mower  v. 


4IO  FORECLOSURE. 


Art.  6.     Reference  to  Compute  Amount  Due. 


Kip,  6  Paige,  88.  If  taxes  or  rents  have  been  paid  by  mortgagee 
they  can  be  collected.  Silver  Lake  Bank  v.  North,  4  Johns.  Ch. 
370;  Robinson  v.  Ryan,  25  N.  Y.  320.  And  the  computation  of 
the  referee  may  be  overruled  by  the  court.  Crine  v.  White,  i 
Law  Bull.  92.  The  report  must  be  confirmed  at  Special  Term. 
Swarthout  v.  Curtis,  4  N.  Y.  415.  And  when  confirmed,  be- 
comes  the   act   of  the  court.     McGoiivcrn   v.  Newman,  4  Abb. 

N.  C.  80. 

When  a  decree  has  been  made  upon  pleadings  and  proofs 
appointing  a  referee  to  compute  the  amount  due,  to  examine  the 
plaintiff  as  to  payments,  and  to  take  proof  as  to  the  allegations 
of  the  bill  against  an  absent  defendant,  and  directing  a  sale  of 
the  premises  on  the  confirmation  of  the  report,  the  parties  who 
have  appeared  and  answered  are  concluded  by  such  decree  as  to 
the  issues  and  pleadings,  and  the  referee  has  no  right  to  examine 
as  to  any  facts  except  those  relating  to  payments  on  the  mort- 
gage, nor  to  examine  the  absent  defendant  on  behalf  of  his 
co-defendant  as  to  a  defence  of  fraud  set  up  in  the  answer.  Mc- 
Cracken  v.  Valentine,  9  N.  Y.  42.  If  any  party  has  objections  to 
the  report  of  a  referee  to  compute,  it  is  his  duty  to  file  and  serve 
exceptions,  or  if  any  irregularity  is  alleged,  to  move  to  set  the 
report  aside;  silence  must  be  deemed  acquiescence  in  the  report 
of  the  reference  and  of  the  regularity  of  the  proceedings  before 
him.  Chamberlain  v.  Dempsey,  36  N.  Y.  144.  To  sustain  a 
report  of  sale  it  cannot  be  shown  by  affidavits  as  against  excep- 
tions to  it,  that  the  terms  of  sale  were  different  from  the  report. 
Koch  V.  Pure  ell,  13  J.  &  S.  162. 

The  .statement  at  the  conclusion  of  the  report  that  plaintiff  is 
entitled  to  judgment  as  specified  in  the  report,  is  a  sufificient 
direction  where  the  reference  was  to  hear  and  decide.  Albany 
County  Savings  Bank  v.  McCarty,  71  Hun,  228. 

The  referee  must  take  testimony  and  report  upon  the  validity 
of  bonds  secured  by  a  mortgage.     Bockes  v.  Hathhorn,  20  Hun, 

503- 

The  referee  should   report  the  amount  due  even  though  the 

allegation  is  that  a  less  amount  is  due  than  appears  by  the  mort- 

gage.     Peck  v.  N.  V.  Co.  85  N.  Y.  246.     The  offering  of  evidence 

by  a  plaintiff  does  not  prevent  his  obtaining  the  benefit  of  any 

admissions  on   the  part  of  the  defendant  by  reason  of  failure  to 

denv  the  allegations  in  the  complaint.     Darling  v.  Breivster,  55 


II 


FORECLOSURE.  411 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

N.  Y.  667.  The  referee  need  not  set  out  at  length  the  items  mak- 
ing up  the  amount  due.  Sidcnbcrgv.  Ely,  90  N.  Y.  257.  It  is 
held  that  where  mortgagee  has  been  compelled  to  pay  rents  to 
preserve  the  property,  the  amount  so  paid  by  him  may  be  in- 
cluded in  the  amount  found  due,  where  the  action  is  against  the 
mortgagor  or  against  his  grantee,  with  notice  of  that  fact,  but 
not  in  case  it  is  against  the  grantee  without  such  notice.  Cattlin 
V.  Grissler,  57  N.  Y.  363  ;  Robinson  v.  Ryan,  25  N.  Y.  320. 

The  court  has  control  over  the  computation  and  may  send  the 
report  back  for  further  findings.     Austin  v.  AJuarnc,  61  N.  Y.  6. 

The  report  of  the  referee  should  be  confirmed  by  the  court  and 
hearing  should  be  had  at  Special  Term.  McGowen  v.  Newman,  4 
Abb.  N.  C.  80;  SivartJioiitv.  Curtis,  4  N.  Y.  415  ;  Empire  Associa- 
tion V.  Stevens,  8  Hun,  515.  Where  the  mortgagee  was  dead  and 
receipts  had  not  always  been  taken  by  the  mortgagors  for  pay- 
ments made,  there  was  positive  testimony  that  deceased  had  said, 
in  order  to  reduce  his  taxes,  that  the  mortgages  were  pretty  much 
all  paid,  and  that  the  defendants  had  paid  their  mortgage  off  to  a 
certain  sum  named,  held,  that  the  referee  to  compute  the  amount 
due  had  the  right  to  believe  and  find  as  a  fact  that  the  sum 
named  was  all  that  was  then  due  deceased.  WJdtman  v.  Foley, 
36  St.  Rep.  133. 

ARTICLE  VII. 

Judgment,    the    Character    and     Extent    of    Relief. 

§§  1626,  1632.     Rule  6i. 

Sub.  I.  Judgment,  the  character  and  extent  of  relief  granted.  §  1626. 
Rule  61. 

2.  Effect  of  final  judgment  and  conveyance.  §  1632. 

3.  Motion  to  vacate  judgment  and  appeal. 

Sub.  I.  Judgment,  the  Character  and  Extent  of  Relief 

Granted.     §  1626.     Rule  61. 
§  1626.  Final  judgment ;  what  to  contain. 

In  an  action  to  foreclose  a  mortgage  upon  real  property,  if  the  plaintiff  be- 
comes entitled  to  final  judgment,  it  must  direct  the  sale  of  the  property  mort- 
gaged, or  of  such  part  thereof  as  is  sufficient  to  discharge  the  mortgage  debt,  the 
expenses  of  the  sale  and  the  costs  of  the  action. 

Rule  61.  Judgment  for  sale  —  form  of — disposition  of  surplus  money  — 
selection  of  refereo. 

In  every  judgment  for  the  sale  of  mortgaged  premises,  the  description  and 
particular  boundaries  of  the  property  to  be  sold,  so  far,  at  least,  as  the  same  can 


412  FORECLOSURE. 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

be  ascertained  from  the  mortgage,  shall  be  inserted.  And,  unless  otherwise 
specially  ordered  by  the  court,  the  judgment  shall  direct  that  the  mortgaged 
premises,  or  so  much  thereof  as  may  be  sufficient  to  discharge  the  mortgage 
debt,  the  expenses  of  the  sale  and  the  costs  of  the  action,  as  provided  by  sections 
1626  and  1676  of  the  Code,  and  which  may  be  sold  separately  without  material 
injury  to  the  parties  interested,  be  sold  by  or  under  the  direction  of  the  sheriff 
of  the  county,  or  a  referee,  and  that  the  plaintiff,  or  any  other  party,  may  be- 
come a  purchaser  on  such  sale;  that  the  sheriff  or  referee  execute  a  deed  to  the 
purchaser;  that  out  of  the  proceeds  of  the  sale,  unless  otherwise  directed,  he  pay 
the  expenses  of  the  sale  as  provided  in  section  1676  aforesaid,  and  that  he  pay 
to  the  plaintiff,  or  his  attorney,  the  amount  of  his  debt,  interest  and  costs,  or  so 
much  as  the  purchase  money  will  pay  of  the  same,  and  that  he  take  the  receipt 
of  the  plaintiff,  or  his  attorney,  for  the  amount  so  paid,  and  file  the  same  with 
his  report  of  sale;  and  that  the  purchaser  at  such  sale  be  let  into  possession  of 
the  premises  on  production  of  the  deed. 

All  surplus  moneys  arising  from  the  sale  of  mortgaged  premises,  under  any 
judgment,  shall  be  paid  by  the  sheriff  or  referee  making  the  sale  within  five 
days  after  the  same  shall  be  received  and  be  ascertainable,  in  the  city  of  New 
York  to  the  cham.berlain  of  the  said  city,  and  in  other  counties  to  the  treasurer 
thereof,  unless  otherwise  specially  directed,  subject  to  the  further  order  of  the 
court,  and  every  judgment  in  foreclosure  shall  contain  such  directions,  except 
where  other  provisions  are  specially  made  by  the  court. 

No  report  of  sale  shall  be  filed  or  confirmed,  unless  accompanied  with  a 
proper  voucher  for  the  surplus  moneys,  and  showing  that  they  have  been  paid 
over,  deposited,  or  disposed  of  in  pursuance  of  the  judgment.  The  referee  to 
be  appointed  in  foreclosure  cases,  to  compute  the  amount  due,  or  to  sell  mort- 
gaged premises,  shall  be  selected  by  the  court,  and  the  court  shall  not  appoint 
as  such  referee  a  person  nominated  by  the  party  to  the  action,  or  his  counsel. 

Under  the  New  York  Practice,  in  mortgage  foreclosures,  the 
decree  for  the  sale  of  the  mortgaged  premises  must  contain  a 
description  of  the  property  to  be  sold,  with  its  particular  bounda- 
ries, so  far  as  the  same  can  be  ascertained  from  the  mortgage,  and 
unless  otherwise  specially  ordered  by  the  court,  the  judgment 
should  direct  that  the  mortgaged  premises,  or  so  much  thereof  as 
may  be  sufficient  to  discharge  the  mortgage  debt,  the  expenses 
of  the  sale,  and  the  costs  of  the  action,  as  provided  by  the  Code, 
be  sold  by  and  under  the  direction  of  the  sheriff,  or  a  referee 
appointed  by  the  court ;  that  the  plaintiff  or  any  other  party  may 
become  the  purchaser  at  such  sale ;  that  the  sheriff  or  referee 
appointed  to  make  the  sale,  execute  to  the  purchaser  a  deed  of 
the  premises  sold ;  that  out  of  the  proceeds  of  the  sale,  unless 
otherwise  directed,  he  pay  all  taxes,  assessments  and  water  rates, 
which  are  liens  upon  the  property  sold,  and  redeem  the  prop- 
erty sold  from  any  sales  for  unpaid  taxes,  assessments  or  water 
rates  which  have  not  apparently  become  absolute  as  prescribed 


FORECLOSURE.  413 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

by  the  Code,  and  that  he  also  pay  to  the  plaintiff  or  to  his  attor- 
ney the  amount  of  his  debt,  interest  and  costs,  or  so  much 
thereof  as  the  purchase  money  will  pay,  and  that  the  purchaser  at 
such  sale  be  let  into  possession  of  the  premises  on  production  of 
the  referee's  deed.  Wiltsie  on  Mortgage  Foreclosure,  §  470. 
As  to  the  order  of  sale  in  parcels,  see  §  1678  and  cases  cited. 

A  court  of  equity  has,  it  is  said,  inherent  power  to  order  a  sale 
of  the  mortgaged  premises  for  the  debt  independent  of  the  stat- 
ute—  Lansing  v.  Goelet,  9  Cow.  346;  Mills  v.  Dennis,  3  Johns. 
Ch.  367  —  and  the  sale  must  be  by  virtue  of  such  a  decree. 
Hart  V.  Ten  Eyck,  2  Johns.  Ch.  262.  Section  1626,  however, 
expressly  provides  that  the  decree  must  direct  the  sale  of  the 
property,  and  it  seems  now  to  be  the  only  method  of  foreclosure 
by  action  recognized  by  the  statute. 

Judgment  of  foreclosure  is  final  and  not  an  interlocutory  judg- 
ment ;  Barnard  v.  Onderdonk,  1 1  Abb.  N.  C.  349 ;  Morris  v. 
Morange,  38  N.  Y.  172;  and  directions  as  to  the  payment  of  a 
judgment  for  deficiency  may  be  contained  in  it.  Moore  v. 
Shaw,  15  Hun,  428;  appeal  dismissed,  yy  N.  Y.  512.  When 
taxes  remain  outstanding  and  unpaid  the  decree  may  properly 
provide  that  the  taxes  due  on  the  property  be  first  paid  out  of 
the  proceeds  of  the  sale.  PougJikeepsie  Savings  Bank  v.  Winn, 
56  How.  368.  The  taxes  should  be  deducted  from  the  proceeds, 
in  fixing  the  amount  of  the  deficiency.  Fleischauer  v.  Doellner, 
60  How.  438.  It  is  no  objection  that  the  final  judgment  of  sale 
is  rendered  by  a  judge  other  than  the  one  who  rendered  the  pre- 
liminary judgment  settling  the  rights  of  the  parties  and  who 
ordered  a  reference  as  to  number  and  amount  of  incumbrancers. 
Chamberlain  v.  Dempsey,  36  N.  Y.  144.  If  the  decree  attempts 
to  give  any  relief  not  asked  for  by  the  pleadings,  it  will  be  vacated. 
Simonson  v.  Blake,  20  How.  484.  And  it  is  ineffectual  if  it 
attempts  to  determine  rights  of  persons  not  parties  to  the  suit. 
Watson  v.  Spence,  20  Wend.  260 ;  Totten  v.  Stuyvesant,  3  Edw. 
500. 

Only  the  rights  and  interests  possessed  by  the  mortgagor  at  the 
time  of  the  mortgage  can  be  sold.  A  judgment  which  forecloses 
a  prior  mortgage  is  irregular  and  may  be  opened  on  motion  of  the 
prior  mortgagee.  M c Reynolds  v.  Munns,  2  Keyes,  214.  But,  in 
case  the  prior  mortgagee  has  been  negligent  in  asserting  his 
rights,  he  will  not  be  allowed   to  distrub  a  bona  fide  purchaser, 


414 


FORECLOSURE. 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 


but  will  be  compelled  to  follow  the  fund  realized  at  the  sale. 
Hamlin  v.  McCahill,  Clarke,  249.  The  court  has  power  to  direct 
the  sale  of  all  the  property  covered  by  the  mortgage,  though  the 
amount  due  may  be  raised  by  the  sale  of  a  portion  only.  De 
Forest  v.  Farley,  4  Hun,  640.  And  it  may  direct  the  entire 
premises  to  be  sold  for  the  benefit  of  subsequent  incumbrancers, 
though  more  than  sufficient  to  satisfy  the  plaintiff's  claim.  A 
sale  of  two  buildings  in  one  lot  is  not  necessarily  invalid  ;  whether 
such  sale  be  valid  or  not  is  to  be  determined  by  the  circumstances 
of  the  particular  case.  Wallace  v.  Feeley,  61  How.  225.  The 
holder  of  the  equity  of  redemption  is  not  entitled  to  have  a  par- 
ticular parcel  sold  first  which  corresponds  to  no  prior  division  of 
the  whole  tract.  EllszvortJi  v.  Lockzvood,  9  Hun,  548.  If  the 
premises  at  the  time  of  the  execution  of  the  mortgage  consisted 
of  a  single  tract,  the  mortgagee,  upon  a  foreclosure,  is  not  bound 
to  sell  in  parcels  though  subsequently  subdivided  into  lots.  Lane 
V.  Conger,  10  Hun,  i. 

When,  by  subsequent  conveyances,  different  equities  have  been 
created  as  to  interests  in  different  parcels  of  a  mortgaged  estate, 
that  portion  will  be  sold  last  on  foreclosure  which  constitutes  an 
owner's  single  security,  and  if  it  would  be  a  sacrifice  to  sell  undi- 
vided interests  in  a  parcel  separately,  where  the  whole  parcel  may 
be  sold,  a  sale  of  the  whole  will  be  decreed  and  the  equities  be- 
tween the  different  parts  will  be  adjusted  on  the  coming  in  of  the 
surplus.      Van  Slyke  v.  Van  Loan,  26  Hun,  344.     A  purchaser  of 
a  part  of  mortgaged  premises  may  require  that  all  the  remainder 
be  first  sold  to  satisfy  the  mortgaged  premises  before  resort  to  his 
property,   although  the  mortgaged  property  be  situated  in  two 
States,  and  the  court  in  which  the  action  to  foreclose  the  mort- 
gage is  pending  may  order  an  assignment  of  the  bond  and  mort- 
gage to  such  part  purchaser  upon   his  paying  the  amount  due, 
with  costs.      Welling  v.  Ryerson,  94  N.  Y.  98.      The  rights  and 
equities  of  the  parties  as  to  sale  in  parcels  and  order  of  sale  and 
rule  of  law  applicable   are   fully   considered   under   §    1678.      A 
decree  having  been  entered   pursuant   to  a    previous  agreement 
between  the  plaintiff  and  the  purchaser,  and  sale  had,  the  plain- 
tiff is  bound  by  it.      Belter  v.  Lyon,  2  St.  Rep.  505.      Where  the 
Supreme  Court  had  jurisdiction   of  the  cause  of  action  and  the 
parties,  its  decree  is  valid  although  part  of  the  premises  covered 
by  it  are  in  another  State.      Union  Trust  Co.  v.  Ohnstead,  2  St. 


FORECLOSURE.  4^5 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 


Rep.  506,  102  N.  Y.  729.  So  long  as  the  sale  of  property  on 
foreclosure  remains  incomplete  by  reason  of  refusal  of  mortgagor, 
who  was  purchaser,  to  complete  the  sale,  the  mortgagee  cannot 
be  compelled  to  waive  his  security  and  take  a  cause  of  action  as 
on  a  contract  debt.  Morehouse  v.  Morehouse,  3  St.  Rep.  790.  A 
judgment  in  foreclosure,  although  determining  the  obligation  to 
pay,  does  not  necessarily  determine  the  rights  of  the  defendant 
in  the  action  against  each  other.     Peet  v.  Kent,  5  St,  Rep.  134. 

A  court  of  equity  has  the  right  to  so  control  the  proceedings 
as  to  produce  a  just  result,  and  to  protect  the  rights  of  all  parties. 
The  General  Synod,  ete.  v.  Lincoln,  6  St.  Rep.  13.  It  seems  it  is 
competent  for  the  court,  in  the  judgment  of  foreclosure,  to 
direct  the  land  to  be  sold  free  of  all  liens,  taxes,  or  assessments, 
or  subject  thereto,  or  it  may  require  them  to  be  paid  out  of  the 
proceeds  of  the  sale  under  such  terms  and  conditions  as  it  shall 
prescribe.  Day  v.  Tozvn  of  Neiv  Lots,  107  N.  Y.  148.  A  judg- 
ment of  foreclosure,  which  is  not  void,  cannot  be  attacked  in  a 
collateral  action.  Batter  man  v.  Albright,  6  St.  Rep.  334.  A 
judgment  of  foreclosure  and  sale  is  not  a  merger  of  the  debt;  it 
is  a  means  of  enforcing  the  Hen  of  the  mortgage  which  remains 
till  the  debt  is  satisfied.  Barnard  v.  Onderdonk,  98  N.  Y.  158. 
But  the  rights  of  subsequent  incumbrancers  may  be  protected  by 
the  court  in  the  sale  of  the  property,  where  a  portion  of  it  is  suffi- 
cient to  satisfy  the  mortgage  by  ordering  the  sale  of  enough  so 
that  other  incumbrancers  may  be  paid.  Livingston  v.  Mildruni, 
19  N.  Y.  440.  Where  it  was  for  the  interest  of  the  owners  of  the 
equity  to  sell  the  whole,  it  was  so  ordered,  although  a  portion  of 
the  premises  would  have  paid  the  mortgage  debt.  Brevoort  v. 
Jackson,  I  Edw.  447. 

A  judgment  in  an  action  to  foreclose  a  junior  mortgage  may 
direct  a  sale  subject  to  the  prior  incumbrance.  Western  Ins.  Co. 
v.  Eagle  Fire  Ins.  Co.  i  Paige,  284;  Daily  v.  Kingon,  41  How.  22. 
The  judgment  may  commit  to  the  referee  the  discretion  as  to 
selling  in  the  inverse  order  of  alienation  as  the  rights  of  the  par- 
ties may  appear,  and  it  is  a  proper  provision.  Rathbonc  v.  Clark, 
9  Paige,  648.  Where  there  are  liens  subsequent  to  the  mortgage, 
the  court  may  order  the  entire  mortgaged  premises  sold,  though 
not  necessary  to  pay  plaintiff's  claim,  or  part  of  the  whole  may 
be  sold.  Deforest  v.  Farley,  62  N.  Y.  628.  Contra,  Merchants 
and  Traders  Savings  Bank  v.  Roberts,  i   Abb.  381.      If  a  party 


4l6  FORECLOSURE. 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 


to  the  suit  wishes  to  have  the  premises  sold  in  a  particular  order, 
he  should  see  that  the  decree  so  provides;  or,  after  the  entry  of 
the  decree,  he  may  move  for  an  order  to  the  referee  directing  the 
manner  in  which  the  premises  are  to  be  sold  ;  Vandercook  v.  Cohoes 
Savings  Institution,  5  Hun,  641  ;  and  the  court  may  order  a  refer- 
ence for  that  purpose.  .V.  Y.  Life  Ins.  aiid  Trust  Co.  v.  Cutler, 
3  Sandf.  Ch.  176;  Bard  v.  Steele,  3  How.  no.  The  rule  requir- 
ing a  sale  of  different  portions  of  the  mortgaged  premises  in  the 
inverse  order  of  alienation  is  applied  in  Thomas  v.  Moravia,  etc. 
Foundry,  etc.  Co.  43  Hun,  487,  citing  Stuyvesant  v.  Hall,  2  Barb. 
Ch.  151  ;  Bernhardt  v.  Lymburncr,  85  N.  Y.  172.  See  as  to  sale 
in  parcels,  §  1678. 

Where  the  terms  of  the  mortgage  are  followed  in  the  direction 
of  sale,  and  the  referee  sells  a  less  estate  than  that  expressed  in 
the  mortgage,  the  sale  transfers  all  the  title  the  mortgagor  had  in 
the  premises,  and  it  does  not  lie  with  a  mortgagor  nor  with  a 
purchaser,  who  has  full  knowledge  of  the  facts,  to  object.  Gra- 
ham V.  Blcakie,  2  Daly,  55.  In  actions  to  foreclose  mortgages 
the  courts  have  power  to  direct  the  payment  by  the  mortgagor 
of  any  residue  of  the  mortgage  debt  that  may  remain  unpaid  after 
sale  of  the  mortgaged  premises,  in  cases  where  the  mortgagor 
shall  be  personally  liable  for  the  debt  secured  by  the  mortgage, 
and  if  the  mortgage  debt  be  secured  by  the  covenant  or  obliga- 
tion of  any  person  other  than  the  mortgagor,  the  plaintiff  may 
make  such  person  party  to  the  action,  and  the  court  may  ad- 
judge payment  of  the  residue  of  such  debt  remaining  unsatisfied 
after  a  sale  of  the  mortgaged  premises  against  such  other  person, 
and  may  enforce  such  payment  as  in  other  cases.  ScJiwinger  v. 
Hickok,  53  N.  Y.  280.  Judgment  may  he  had  for  deficiency 
against  representatives  of  deceased  mortgagor.  Glacius  v.  Fogel, 
88  N.  Y.  434. 

Plaintiff  in  a  foreclosure  cannot  have  contingent  personal  judg- 
ment against  some  of  the  defendants,  before  final  judgment  of 
foreclosure  Cobb  v.  Thornton,  8  How.  66.  After  one  of  two 
joint  purchasers  who  assumed  an  existing  mortgage,  has  paid 
his  share  of  the  debt,  the  court  will  direct  the  interest  of  the 
other  purchaser  to  be  first  applied  in  payment  of  the  mortgage. 
Cornell  v.  Prescott,  2  Barb.  16.  In  Ferguson  v.  Kimball,  3  Barb. 
Ch.  616,  modified  2  N.  Y.  360,  the  form  and  requisites  of  a  judg- 
ment of  foreclosure  and  sale  are  given.     Where  mortgage  is  con- 


FORECLOSURE.  4^7 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 


ditioned  for  support  of  mortgagee,  several  owners  of  different 
parcels  of  mortgaged  premises  are  bound  to  contribute  to  her 
support,  ratably.  But  in  foreclosure  of  a  mortgage,  conditioned 
for  the  support  of  the  mortgagee,  no  relief  can  be  granted  for  a 
neglect  to  support  after  the  commencement  of  the  action.  "  Mor- 
rison  v,  Morrison,  4  Hun,  410.  For  form  of  judgment  where 
there  is  a  right  to  move  a  building,  see  Brown  v.  Keeney  Cheese 
Association,  59  N.  Y.  242.  Where  prior  lessors,  made  parties, 
set  up  their  priority,  the  complaint  should  be  dismissed  as  to 
them;  judgment  establishing  their  priority  and  amount  should 
not  be  given  against  the  other  defendants.  Payn  v.  Grant,  23 
Hun,  134.  Prior  incumbrancers  may  be  made  parties,  for  the 
purpose  of  having  the  amount  of  their  incumbrances  ascertained 
and  paid  off,  but  if  their  priority  is  not  stated  in  the  complaint, 
or  provided  for  in  the  judgment,  they  do  not  lose  any  rights  by 
failing  to  answer,  and  do  not  waive  priority  of  their  liens  unless 
the  land  was  sold  free  of  their  liens,  with  their  consent.  Emi- 
grant Industrial  Savings  Bank  v.  Goldfuan,  75  N.  Y.  127.  But 
it  seems  that  one  who  claims  under  an  unrecorded  deed  prior  to 
the  mortgage  is  a  proper  defendant,  and  the  question  of  priority 
is  necessarily  involved  and  proper  to  be  determined  in  the  action. 
Brown  v.  Volkening,  64  N.  Y.  76. 

An  amendment  to  a  decree  of  foreclosure,  made  before  the  sale, 
striking  out  a  direction  that  the  referee  deduct  from  moneys 
arising  on  the  sale  any  lien  or  liens  on  the  premises,  and  directing 
him  to  sell  subject  to  such  liens,  cannot  affect  the  rights  of  defend- 
ant and  is  within  the  power  of  the  court.  Valentine  v.  McCue, 
26  Hun,  456.  Where  a  defendant's  mortgage  is  adjudged  to  be 
prior  to  part  of  plaintiff's,  but  it  appears  it  is  involved  and  ques- 
tioned in  another  action,  it  is  proper  to  provide  that  distribution 
await  the  result  of  such  litigation.  Bnllymore  v.  Sezuard,  15 
Week.  Dig.  283.  It  seems  that  on  foreclosure  of  a  junior  mort- 
gage the  court  has  power  to  direct  a  further  sale  of  the  premises, 
to  pay  a  subsequent  mortgage.  McBride  v.  LezvisoJin,  7  Hun, 
524.  When,  upon  the  foreclosure  of  a  mortgage,  the  holder  of  a 
prior  incumbrance  is  not  a  party,  he  should  not  be  allowed,  in  an 
action  for  the  foreclosure  of  his  mortgage,  to  have  the  premises 
sold  subject  to  the  lien  of  the  prior  mortgage,  but  a  decree  allow- 
ing him  to  redeem  from  it  should  be  entered.  Salmon  v.  Allen, 
II  Hun,  29;  afterward  reported  as  Salmon  v.  Gedney,  75  N.  Y. 
[Special  Actions  —  27.] 


4l8  FORECLOSURE. 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

479.  See,  also,  Bache  v.  Purcell,  6  Hun,  518.  In  an  ordinary 
action  of  foreclosure,  judgment  for  payment  to  plaintiff  of 
moneys  awarded  for  a  portion  of  the  land  taken  for  public  pur- 
poses and  for  foreclosure  of  the  balance  is  proper.  Hooker  v. 
Martin,  10  Hun,  302. 

Where,  pending  a  foreclosure  for  interest,  the  principal  be- 
comes due,  and  recovery  for  the  whole  is  allowed,  the  judgment 
should  be  drawn  in  conformity  with  the  provisions  regulating 
cases  in  which  suit  is  brought  for  an  installment,  and  the  princi- 
pal becomes  payable,  while  the  action  is  pending,  as  under 
§  1636.  Sidenberg  v.  Ely,  i  Law  Bull.  70.  A  judgment  against 
the  administrator  of  the  mortgagor,  for  a  deficiency,  cannot  be 
declared  a  lien  upon  the  surplus  arising  from  another  foreclosure 
sale.  Fliess  v.  Buckley,  24  Hun,  514,  90  N.  Y.  286.  Where  the 
bond  and  mortgage  are  shown  to  have  been  in  possession  of 
plaintiff's  testator  four  months  before  his  death,  and  six  years 
had  since  elapsed  and  no  one  claimed  payment,  and  the  bond  and 
mortgage  could  not  be  found,  it  was  held  error  to  make  a  decree 
in  foreclosure  conditional  on  the  giving  a  bond  of  indemnity  by 
plaintiff,  since  payment  by  defendant  in  good  faith  would  protect 
him  against  any  other  claimant.  Stoddard  v.  Gailor,  90  N.  Y. 
575.  Where  a  purchaser  at  a  foreclosure  sale,  who  has  deducted 
from  the  purchase  price  an  assessment,  thereafter  has  the  assess- 
ment vacated,  the  decree  of  sale  will  not  be  amended  so  as  to 
compel  him  to  allow  the  amount  of  the  assessments,  although 
similar  assessments  had,  at  the  time  of  the  sale,  been  vacated  at 
the  instance  of  other  parties.  Browning  v.  O'Connell,  4  Law 
Bull.  9. 

A  judgment  of  foreclosure  upon  a  leasehold  interest  in  lands  in 
the  Indian  reservation  will  not  be  amended  on  the  ground  the 
lease  is  invalid.  Sheehan  v.  Mayer,  41  Hun,  609.  A  decree  in 
foreclosure  does  not  extinguish  the  mortgage,  and  until  the  bond 
or  debt,  to  secure  which  the  mortgage  was  given,  is  fully  paid, 
the  mortgagor  cannot  require  the  return  or  cancelation  of  the 
mortgage.  Barnard  v.  Onderdonk,  98  N.  Y.  168.  On  the  fore- 
closure of  a  mortgage,  the  property  was  bought  in  by  the  mort- 
gagee, and  a  judgment  for  deficiency  was  obtained  against  the 
mortgagor.  Afterward  the  property  was  reconveyed  to  the 
mortgagor,  and  a  sum  of  money  loaned  him,  to  be  secured  by 
mortgages  on  the  property  and  on  other  property.     The  defi- 


i 


FORECLOSURE.  419 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 


ciency  judgment  was  to  be  satisfied,  and  the  satisfaction  given  to 
a  third  party.  In  an  action  to  foreclose  the  mortgage  on  the 
other  property,  usury  was  set  up  and  sustained.  The  mortgagee 
brought  an  action  to  foreclose  the  mortgage  on  the  property  in 
dispute,  bought  it  in  and  obtained  a  deficiency  judgment,  and 
also  brought  an  action  to  restrain  the  person  to  whom  the  satis- 
faction piece  had  been  given  from  delivering  it,  and  to  have  the 
original  deficiency  judgment  declared  valid;  held,  that  by  the 
judgment  declaring  the  mortgages  on  the  other  property  to  be 
void,  the  consideration  for  which  the  satisfaction  piece  was  given 
failed,  and  the  original  debt  was  restored.  Russell  v.  Nelson,  99 
N.  Y.   119. 

The  court  has  ample  power  to  make  such  corrections  in  a  judg- 
ment of  foreclosure  as  changed  conditions  may  render  necessary. 
Mutual  Life  Ins.  Co.  v.  Newell,  78  Hun,  293,  60  St.  Rep.  241, 
28  Supp.  913. 

It  is  a  fundamental  doctrine  that  all  persons  whose  interests 
are  to  be  affected  by  a  judicial  decree  must  be  made  parties 
either  individually  or  by  representation,  or  have  what  is  in  some 
cases  equivalent  notice,  so  that  they  may  have  an  opportunity  to 
be  heard,  and  as  to  such  persons,  when  not  parties  or  represented 
by  a  judicial  sentence,  is  a  nullity.  So  held  where  assignee  in 
bankruptcy  was  not  made  a  party.  Landon  v.  Totvnshend,  16  Civ. 
Pro.  R.   161,  reversing  44  Hun,  561. 

Where  the  relief  demanded  was  a  foreclosure  and  sale  and 
judgment  for  deficiency  against  a  defendant  not  answering;  Jield, 
that  a  judgment  granting  such  relief  was  not  authorized,  as  it 
appeared  from  the  findings  that  such  defendant  had  no  interest  in 
the  bond.  Olcott  v.  KoJilsatt,  8  N.  Y.  Supp.  117  S.  C.  27  St. 
Rep.  914. 

The  rule  that  real  estate  should  be  sold  in  the  inverse  order  of 
alienation  applied  to  the  right  of  way  over  lands,  and  where  the 
owner  of  the  right  of  way  agreed  to  bid  upon  a  foreclosure  sale 
for  the  property,  exclusive  of  the  right  of  way,  the  amount  of 
the  mortgage  debt  and  costs,  the  court  will  protect  his  rights, 
and  order  the  premises  other  than  the  right  of  way  to  be  first 
sold.      Case  v.  Mannis,  33  St.  Rep.  44. 

The  court  has  power  to  order  a  sale  of  the  whole  of  the  mort- 
gaged premises  even  if  sale  of  a  part  thereof  would  be  sufificient 
to  discharge  the  mortgage  of  the  plaintiff  and  prior  mortgages. 


420  FORECLOSURE, 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

where  a  proper  case  for  the  exercise  of  that  power  is  presented, 
this  with  a  view  not  to  the  satisfaction  of  the  plaintiff's  mortgage, 
but  to  the  better  protection  of  the  subsequent  liens.  Section 
1626  should  not  be  regarded  as  prescribing  an  invariable  form  for 
judgments  in  foreclosure.     Dobbs  v.  Xicbtihr,  19  St.  Rep.  909. 

In  an  action  to  foreclose  a  mortgage  where  a  part  of  the  lands 
covered  by  it  are  in  another  State,  the  court  has  power  to  decree 
a  sale  of  the  whole  and  may  require  the  mortgagor  to  execute  a 
conveyance  to  the  purchaser.  Where  the  provisions  for  the  con- 
veyance are  omitted  from  the  judgment,  the  court  has  power 
after  a  sale  to  amend  the  judgment  by  inserting  therein  such  a 
provision.  Union  Trust  Co.  of  Nezu  York  v.  Olmstead,  102  N.  Y. 
729.  The  court  has  no  jurisdiction  on  foreclosure  of  a  mortgage,  to 
enter  a  decree  directing  the  sale  of  other  real  estate  not  subject 
to  the  mortgage,  although  the  owner  thereof  is  a  party  to  the 
action,  and  so  far  as  it  purports  so  to  do,  the  decree  is  void. 
Clapp  V.  McCabe,  84  Hun,  379,  32  Supp.  425,  65  St.  Rep.  699. 

Where  the  mortgagee  is  in  possession,  it  is  proper  in  an  action 
for  foreclosure  to  charge  him  with  the  rents  and  profits  of  the 
land  which  he  has  received,  and  if  he  has  collected  rents  and 
profits  sufificient  to  pay  the  mortgage  in  full,  the  complaint  should 
be  dismissed  without  costs.  Smith  v.  Cross.,  85  Hun,  58,  32 
Supp.  d-j-j,  66  St.  Rep.  61. 

An  amendment  of  a  judgment  of  foreclosure  in  an  action  in 
which  the  mortgagees  trustee  was  made  a  party  but  did  not 
answer,  by  directing  such  trustee  to  convey  to  the  purchaser  at 
the  sale,  is  at  most  voidable  and  not  void,  and  disobedience 
thereof  by  the  trustee  is  ground  for  his  removal.  Harrison  v. 
U7iion  Trust  Co.  144  N.  Y.  326,  39  N.  E.  Rep.  353,  6^  St.  Rep. 
668,  affirming  80  Hun,  463,  62  St.  Rep.  276,  30  Supp.  443.  In 
Bigelow  V.  Davol,  53  St.  Rep.  407,  23  Supp.  494,  it  was  held  that 
a  decree  should  have  merely  provided  for  the  sale  subject  to  rights 
acquired  under  a  prior  mortgage. 

In  foreclosure  against  the  devisees  of  the  deceased  mortgagor, 
moneys  misappropriated  by  the  mortgagee  as  trustee  of  the 
estate  and  guardian  of  the  defendants,  should  be  deducted  from 
the  amount  of  the  mortgage  and  an  accounting  may  be  ordered 
for  that  purpose.  Ingalsbe  v.  Murphy,  84  Hun,  181,  32  Supp. 
569,  65  St.  Rep.  792.  The  transfer  by  a  mortgagee  of  a  note  of 
the  mortgagor  which,  when  paid,  was  to  be  applied  on  the  mort- 


I 


FORECLOSURE.  42 1 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

gage,  operates  as  a  payment  so  long  as  it  remains  in  the  hands  of 
the  transferee  and  cannot  be  produced  by  the  mortgagee  or  the 
assignee  of  the  mortgage,  and  the  amount  thereof  should  be  de- 
ducted on  foreclosure  from  the  amount  otherwise  due  on  the 
mortgage.  Fitch  v.  McDowell,  145  N.  Y.  498,  65  St.  Rep.  369, 
40  N.  E.  Rep.  205,  afifirming  80  Hun,  207,  61  St.  Rep.  776,  30 
Supp.  31. 

Sub.  2.  Effect  of  Final  Judgment  and  Conveyance.     §  1632. 

^  1632.  Xjffect  of  conveyance  upon  sale. 

A  conveyance  upon  a  sale,  made  pursuant  to  a  final  judgment,  in  an  action  to 
foreclose  a  mortgage  upon  real  prooerty,  vests  in  the  purchaser  the  same  estate, 
only,  that  would  have  vested  in  the  mortgagee,  if  the  equity  of  redemption  had 
been  foreclosed.  Such  a  conveyance  is  as  valid,  as  if  it  was  executed  by  the 
mortgagor  and  mortgagee,  and  is  an  entire  bar  against  each  or  them,  and 
against  each  party  to  the  action  who  was  pduly  summoned,  and  every  person 
claiming  from,  through  or  under  a  party,  by  title  accruing  after  the  filing  of  the 
notice  of  the  pendency  of  the  action,  as  prescribed  in  the  last  section. 

The  deed  is  a  complete  bar  to  the  equity  of  redemption.  Lans- 
ing V.  Goelet,  9  Cow.  346.  The  declaration  in  §  1632  that  the 
conveyance  "is  as  valid  as  if  it  were  executed  by  the  mortgagor 
and  mortgagee,  and  is  an  entire  bar  against  each  of  them,"  was 
not  intended  to  convey  any  other  title  which  might  be  in  the 
mortgagee  paramount  to  the  mortgage  foreclosed,  but  simply  for 
the  purpose  of  conveying  the  mortgagor's  equity  of  redemption 
and  an  entire  bar  as  to  the  mortgagee  of  all  his  claim  under  that 
mortgage.  Clements  v.  Griswold,  46  Hun,  T^yj.  A  foreclosure 
sale  passes  the  title  of  each  and  every  of  the  parties  to  the  suit, 
and  the  deed  of  the  officer  making  the  sale  is  as  effectual  as  if  the 
mortgagor  and  mortgagee  had  united  in  a  deed  of  the  property, 
and  is  a  bar  against  all  the  parties  to  the  suit.  The  title  passes 
to  the  purchaser,  even  though  the  judgment  should  be  reversed 
or  set  aside  for  error  or  irregularity  on  appeal.  Smith  v.  Joyce, 
25  Week.  Dig.  106;  Ray  nor  v.  Wilson,  6  Hill,  469;  Hening  v. 
Panett,  4  Daly,  543;  Clements  v.  Griswold,  a^^  Hun,  377;  Wood  v. 
Chapin,  13  N.  Y.  509;  Slatterly  v.  Schzuannecke,  44  Hun,  75;  see 
Seward  v.  Huntington,  94  N.  Y.  104;  Noonan  v.  Brennerman, 
8  St.  Rep.  91  ;  Holden  v.  Sackett,  12  Abb.  473 ;  Dc  Forest  v.  Far- 
ley, 62  N.  Y.  628.  But  it  is  a  bar  only  as  against  parties  prop- 
erly made  parties  to  the  action,  and  does  not  bar  the  title  of  one 
who  has  paramount  title  to  the  mortgagor  and  mortgagee.     Lewis 


422  FORECLOSURE. 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

V.  Smith,  9  N.  Y.  502;  Payn  v.  Grant,  23  Hun,  134;  Oaunbaugh 
V.  Wing,  12  Week.  Dig.  566;  Merchants'  Bank  v.  Thompson,  55 
N.  Y.  7;  Rathbone  v.  Hooney,  58  N.  Y.  463;  Emigrant  Indus- 
trial Bank  v.  Goldman,  75  N.  Y.  127;  Frost  v.  Coon,  39  N.  Y.  428. 
The  master's  deed  may  be  construed  as  a  release  by  the  mort- 
gagor of  the  equity  of  redemption.  Packer  v.  R.  &  S.  R.  R.  Co- 
17  N.  Y.  283. 

The  effect  of  the  foreclosure  deed,  as  determined  by  statute, 
is  to  vest  in  the  purchaser  the  entire  interest  and  estate  of  the 
mortgagor  and  mortgagee,  as  it  existed  at  the  date  of  the  mort- 
gage, and  unaffected  by  the  subsequent  conveyances  or  incum- 
brances of  the  mortgagor.  Rector  of  Christ  Church  v.  Mack,  93 
N.  Y.  488.  The  purchaser  takes  the  title  of  the  mortgagor  at  the 
date  of  the  mortgage,  and  if  his  title  is  a  mere  equity,  that  is  all 
that  is  transferred.  Stezvart  v.  Hutchinson,  29  How.  181.  The 
master  can  only  convey  what  is  included  in  the  decree.  Laverty 
v.  Moore,  33  N.  Y.  658.  The  rents  of  the  mortgaged  premises 
accruing  or  becoming  payable  between  the  day  of  the  sale  and 
the  time  when  the  purchaser  will  be  entitled  to  the  possession  of 
the  premises,  belong  to  the  owner  of  the  equity  and  not  to  the 
purchaser  at  the  sale.  Astor  v.  Turner,  ii  Paige,  436.  A  mort- 
gage executed  by  a  grantee  holding  under  an  unrecorded  deed, 
of  which  mortgage  an  assignment  to  one  not  a  party  has  been 
recorded  before  filing  the  lis  pendens,  is  cut  off  by  a  foreclosure 
of  a  prior  mortgage.  Kipp  v.  Brandt,  49  How.  358.  The  fore- 
closure is  binding  on  an  assignee  in  bankruptcy  who  has  notice 
of  the  action  pending  against  his  assignor.  Cleveland  v.  Boerum, 
lAt  N.  Y.  613.  When  a  mortgage  was  foreclosed  without  joining 
the  holder  of  a  subsequent  mortgage  on  the  same  premises,  whose 
title  appeared  of  record,  and  on  the  sale  under  foreclosure  the  first 
mortgagee  purchased  the  property  and  received  the  rent  and 
profits,  it  was  held,  as  to  the  second  mortgage,  he  merely  became 
mortgagee  in  possession,  and  was  liable  to  account  for  the  rents 
and  profits,  and  that  the  utmo.st  effect  of  the  foreclosure  and  sale 
was  to  transfer  the  equity  of  redemption  from  the  mortgagor  to 
the  plaintiff  in  the  action.      Welch  v.  Rutgers  Fire  Ins.    Co.    13 

Abb.  33. 

Where  the  holder  of  the  prior  mortgage  forecloses  and  bids  in 
the  premises,  the  presumption  is  that  he  bids  to  the  value  of  the 
equity  of  redemption  only,  and  he  must  be  deemed  to  hold  the 


FORECLOSURE.  423 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

premises  as  a  fund  for  the  payment  of  the  first  mortgage.     Mat- 
thews V.  Aikin,  I  N.  Y.  595.     A  subsequent  mortgagee  is  cut  off 
where  made  a  party,  though  his  mortgage  was  not  paid  from  the 
proceeds,   though   they  were  sufficient.      Wood  v.  McGliighan,  2 
Hun,  150.     A  foreclosure  by  judgment  is  wholly  inoperative  as  to 
an  existing  judgment  creditor  not  a  party  to  the  suit.      It  seems 
that  a  judgment  creditor  who  has  not  made  his  lien  specific  by  a  sale 
of  the  land,  is  entitled  to  redeem  from  a  mortgagee  in  possession 
under  a  foreclosure  to  which  such  judgment  creditor  was  not  a 
party.     Braiiiard  v.  Cooper,   10  N.  Y.   356;  Reynolds  v.  Park,  53 
N.   Y.    36.     Where  a  senior   mortgagee  has   foreclosed  without 
making  a  junior  mortgagee  a  party  to  such  foreclosure  suit,  the 
junior  mortgagee  may  redeem   by  paying    the    mortgage  debt, 
principal  and  interest,  without  paying  the  costs  of  the  previous 
foreclosure.     A  person   is  not   affected  by  a  foreclosure  suit  to 
which  he  is  not  a  party,  and  stands  in  the  same  relation  to  it  as 
if  there  had  been  no  .suit.      Gage  v.  Brewster,  31  N.  Y.  218 ;  Mes- 
singer  v.  Messmgcr,   12  Week.    Dig.   368;    appeal  dismissed,   89 
N.  Y.  604.     A  purchaser  at  a  tax  sale  is  not  affected  by  fore- 
closure of  a  subsequent  mortgage  in  an  action  to  which  he  was 
not  a  party.     Becker  v.  Howard,  66  N.  Y.  6.     A  foreclosure  is 
void  as  to  the  owner  of  half  the  equity  of  redemption  in  the  mort- 
gaged premises,  who  was  not  made  a  party.     Schriver  v.  Schriver, 
86  N.  Y.  575. 

A  purchaser  at  a  foreclosure  sale  under  a  mortgage  made  by 
the  husband  and  wife  where  the  wife  was  not  a  party  to  the  suit, 
acquires  the  property  incumbered  by  a  contingent  dower  interest, 
and  an  assignment  of  mortgage  so  far  as  unforeclosed  upon  such 
interest.  Ross  v.  Boardjnaji,  22  Hun,  527.  If  the  proceedings 
are  irregular,  the  purchasers  acquire  the  interest  of  the  owner  of 
the  equity  and  persons  having  incumbrances  who  are  parties. 
Vroom  V.  Ditmas,  4  Paige,  531  ;  Vanderkenip  v.  Sheldon,  11  Paige, 
28;  Seward  v.  Huntington,  94  N.  Y.  104.  As  to  persons  having 
liens  who  are  not  parties,  he  acquires  the  rights  of  an  assignee  of 
the  mortgagee.  Gage  v.  Brewster,  31  N.  Y.  218;  Reynor  v. 
Selmes,  52  N.  Y.  579;  Wmslow  v.  Clark,  47  N.  Y.  261  ;  Dunning  v. 
Fisher,  20  Hun,  178.  When  one  who  holds  an  assigned  mortgage 
as  collateral  security  makes  the  assignor  and  mortgagee  parties 
under  the  general  allegation  of  interest,  all  their  rights  are  cut 
off  by  a  sale.     Bloomer  v.  Stiirges,  58  N.   Y.    168.     As  to  the 


424  FORECLOSURE. 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

effect  of  a  decree  in  peculiar  cases  see  Darwin  v.  Hatfieldy 
4  Sandf,  168  ;  Weeks  v.  Tomes,  16  Hun,  349,  affirmed,  76 
N.  Y.  601  ;  Fuller  v.  Scribner,  y6  N.  Y.  190.  A  title  derived 
from  a  foreclosure  sale  is  not  defective  for  failure  to  record  an 
assignment  of  the  mortgage  to  the  party  who  foreclosed,  for  an 
assignment  may  be  made  by  delivery  only,  and  the  judgment  of 
the  court  is  conclusive  that  there  was  such  delivery.  Fryer  v. 
Rockefeller,  63  N.  Y.  268.  If,  for  any  reason,  the  title  of  the  mort- 
gagor is  not  subject  to  a  prior  mortgage,  the  purchaser's  is  equally 
free.      Westbrook  v.  Gleason,  79  N.  Y.  23. 

One  who  took  an  absolute  deed  as  security  for  advances,  and 
by  arrangement  took  possession  and  appropriated  the  rents  and 
profits  which  should  have  been  applied  to  the  mortgage,  and  on 
foreclosure  bought  in  the  premises,  held,  a  trustee  in  his  own 
wrong,  and  that  the  debtor  was  entitled  to  redeem,  even  though 
the  debtor  did  not  defend.     Bennett  v.  Austin,  81    N.   Y.  308. 
Upon  the  foreclosure  of  a  mortgage  which   contained   no  cove- 
nants, it  was  held  that  the  relation  of  mortgagor  and  mortgagee 
was  extinguishhed  by  the  sale,   and  the  latter,  being  thereafter 
under  no  duty  to  protect  the  title,  might  obtain  an    outstand- 
ing  and  paramount  title  to   the   premises.      Jackson  v.  Littell, 
56  N.  Y.    108.      A  mortgagee  who  purchased  at   a   foreclosure 
sale,  fraudulent  as  to  infant  owners,  will  be  charged  as  a  mort- 
gagee in  possession   if  he  was  privy  to  the  fraud.     McMurray 
v.  McMurray,  66  N.  Y.  175.     The  rules  regulating  the  sale,  and 
rights  and  Hability  of  the  purchaser  are  discussed  under  §  1678, 
and  as  to  obtaining  possession  after  sale,  under  §  1675.     Where 
an  assignee  in  bankruptcy,  who  held  an  interest  as  such,  was  a 
party  to  a  foreclosure  as  an  individual,  the  complaint  containing 
the  usual  allegation,  that  he  had  or  claimed  an   interest  in  the 
premises,  held,  that  the  judgment  foreclosed  the  interest  he  had 
as  assignee  in  bankruptcy.     Landon  v.  Townshend,  44  Hun,  561. 

The  dower  right  of  the  wife  of  a  mortgagor  is  not  cut  off  by  a 
foreclosure  of  a  purchase-money  mortgage  in  an  action  to  which 
she  was  not  a  party.  Campbell  v.  Ellwanger,  81  Hun,  259,  30 
Supp.  792.  But  a  judgment  in  foreclosure  cannot  be  amended 
after  sale  by  inserting  the  deficiency  clause.  Union  Trust  Co.  v. 
Schliep,  59  St.  Rep.  867,  28  Supp.  382,  31  Abb.  N.  C.  52,  23 
Civ.  Pro.  R.  264. 

Where  one  of  the  defendants  who  owns  an  undivided  interest 


FORECLOSURE.  425 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

in  the  property  dies  pending  foreclosure,  and  her  heirs  or  de- 
visees are  not  brought  in  as  parties,  entry  of  judgment  against 
her  is  without  authority,  and  her  interest  is  not  affected.  Ste- 
phens V.  Humphreys,  73  Hun,  199,  56  St.  Rep.  70,  25  Supp.  946. 

Where  the  owner  of  the  equity  of  redemption  did  not  appear 
and  the  demand  of  the  complaint  was  that  the  premises  be  sold 
and  the  mortgagor  and  his  wife,  and  all  claiming  under  them  sub- 
sequent to  the  commencement  of  the  action,  be  barred  and  fore- 
closed, held,  that  the  owner  of  the  equity  was  concluded,  and 
that  the  title  under  a  purchaser  on  a  foreclosure  sale  was  good. 
Mygatt  V.  Somerville,  54  St.  Rep.  269,  23  Supp.  808. 

It  seems  that  if  the  purchaser  of  real  property  subject  to  an 
existing  mortgage  intends  to  assert  title  to  fixtures  which  he  has 
erected  upon  the  mortgaged  premises,  by  virtue  of  a  special 
agreement,  he  is  bound  to  do  so  in  the  foreclosure  action.  Mc- 
Faddcn  v.  Allen,  134  N.  Y.  489,  48  St.  Rep.  324.  It  is  also  held 
in  Helck  v.  Reinheimer,  105  N.  Y.  470,  that  where  defendants  set 
up  a  claim  of  paramount  title  and  the  issues  raised  in  the  answer 
are  litigated  and  decided  without  objection,  defendants  will  be 
bound  by  the  judgment,  and  cannot  object  on  appeal  that  the 
question  raised  by  the  answer  could  not  be  litigated  in  a  fore- 
closure action,  and  in  Goebelv.  Iffla,  in  N.  Y.  170,  19  St.  Rep. 
105,  it  is  held  that  while  prior  incumbrancers  are  neither  neces- 
sary nor  proper  parties  to  an  action  of  foreclosure,  and  when 
made  such  under  a  general  allegation  they  claim  the  interest  as  a 
subsequent  purchaser,  incumbrancer  or  otherwise,  a  decree  will 
not  affect  them  ;  yet,  if  instead  of  demurrer  or  answer,  the  defend- 
ant litigates  the  question  and  the  judgment  goes  against  him,  he 
will  be  estopped  from  afterwards  setting  up  his  interest  against 
the  judgment  in  a  foreclosure  action.  Crovnvell  v.  MeLean,  123 
N.  Y.  475- 

Where  a  testatrix  having  power  of  sale  with  certain  trusts 
was  made  defendant,  but  the  persons  entitled  were  not  made  par- 
ties, it  was  held  that  defendant  only  acquired  the  title  of  the 
parties  to  foreclosure  and  that  the  fee  being  vested  in  the  heirs 
at  law,  had  not  been  divested.  Noonan  v.  Brenneniann,  54  N.  Y. 
Supr.  337;  S.  C.  8  St.  Rep.  91.  Where  a  purchaser  at  a  tax  sale 
subsequent  to  the  delivery  of  the  mortgage  claimed  title  by  vir- 
tue of  such  sale  and  tax  deed,  no  notice  having  been  given  to  the 
mortgagee  of  such  sale  as  required  by  law,  it  was  held  that  plain- 


426  FORECLOSURE. 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 


tiff's  lien  was  superior  to  the  claim  of  the  purchaser.  Ruyter  v. 
Nickes,  22  St.  Rep.  200.  As  to  the  effect  of  the  recording  act  as 
regards  parties  to  a  foreclosure  and  effect  of  the  judgment  thereon, 
see  Slattcry  v.  Schwaiinccke,  118  N.  Y.  543,  afHrming  44  Hun,  75. 

Where  there  is  a  claim  for  deficiency  against  several  defendants 
and  a  waiver  of  claim  therefor  as  to  all  but  one  defendant,  it  is,  in 
effect,  an  amendment  of  the  complaint  and  the  judgment  in  such 
action  is  not  an  adjudication  as  to  the  liability  of  the  defendants 
as  to  whom  the  waiver  was  made.  National  Hiidsofi  River  Batik 
V.  Reynolds,  57  Hun,  307 ;  s.  c.  10  N.  Y.  Supp.  669,  32  St.  Rep.  124. 
A  provision  directing  a  sale  of  the  several  lots  covered  by  a 
mortgage  in  the  inverse  order  of  alienation  does  not  settle  relative 
rights  and  equities  of  the  parties  in  respect  to  their  priorities  as 
subsequent  incumbrances,  where  no  such  issue  has  been  raised  in 
the  pleadings  and  prior  proceedings.  Biirchell  w.  Osborne,  119 
N.  Y.  486;  S.  c.  29  St.  Rep.  788.  A  party  who  has  an  interest  in 
real  estate  prior  to  that  of  a  mortgagor  is  not  affected  by  the  judg- 
ment in  a  suit  for  foreclosure  of  the  mortgage  though  made  a  party 
under  the  allegation  in  the  complaint  that  he  has  or  claims  some 
interest  subject  to  the  lien  of  the  mortgage.  Ruyter  v.  Reid,  12 1 
N.  Y.  498.  The  apparent  owner  of  the  equity  of  redemption 
should  be  a  party  and  served  with  process  in  order  to  cut  off  the 
right  of  subsequent  incumbrancers  or  persons  holding  through 
unrecorded  conveyances  from  him  although  such  an  omission  may 
not  affect  a  grantee  by  unrecorded  deed  who  is  himself  a  defend- 
ant and  properly  served ;  the  wife  of  the  latter,  not  being  a  de- 
fendant, will  be  unaffected  by  the  decree  and  her  dower  will  not 
be  cut  off.  Kursheedt  v.  Union  Dime  Savings  Inst,  of  N.  F.  118 
N.  Y.  358  s.  c.  28  St.  Rep.  933. 

Where  a  mortgage  existed  upon  a  farm  belonging  to  defend- 
ants' mother,  on  which  he  had  planted  crops,  and  he  was  not  a 
party  to  the  foreclosure;  Jield,  his  rights  as  to  the  growing  crops 
were  not  affected.  St.  John  v.  Swain,  38  St.  Rep.  784.  A  state- 
ment in  a  referee's  report  that  plaintiff  is  entitled  to  judgment 
of  foreclosure  and  .sale  and  for  a  deficiency,  if  any,  is  a  sufificient 
direction  for  the  entry  of  judgment.  Albany  County  Savings 
Bank  V.  McCarty,  71    Hun,   227,  54  St.  Rep.  577,  24  Supp.  991. 

Where  a  judgment  did  not  expressly  authorize  the  referee 
to  execute  a  deed  to  the  purchaser,  but  provided  that  the 
purchaser  should  be  entitled  to  possession  on  production  of  his 


FORECLOSURE.  427 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

deed,  and  that  the  mortgagor  and  the  receiver  should  join  in  the 
deed,  it  was  held  that  a  claim  that  the  referee  had  no  authority 
under  the  judgment  to  execute  the  deed  was  untenable;  that  such 
authority  was  to  be  understood  from  the  language  of  the  judgment, 
and  that  as  the  court  below  had  sanctioned  the  giving  of  the 
deed  and  thus  construed  its  judgment,  no  ground  of  complaint 
on  that  account  remained.  Fanners  Loan  &  Trust  Co.  v.  Banks, 
etc.  TelcgrapJi  Co.  119  N.  Y.  13. 

The  proceeds  of  a  sale  under  a  mortgage  given  by  the  mort- 
gagor to  secure  various  debts  are  paid  over  to  the  creditor,  not 
as  a  voluntary  payment,  but  by  operation  of  law,  and  in  the 
absence  of  directions  given  in  the  security,  their  application, 
when  several  obligations  are  secured  by  the  mortgage  and  their 
proceeds  will  not  pay  all,  is  to  be  made  by  the  court  in  accord- 
ance with  equitable  principles.  Orleans  Co.  National  Bank  v. 
Moore,  112  N.  Y.  543.  A  foreclosure  operates  to  cut  off  the 
rights  of  all  subsequent  parties  who  were  made  parties  to  the 
action.  Johnson  v.  Snell,  34  St.  Rep.  177;  citing  Smith  y.  Gar- 
diner, 42  Barb.  356.  A  purchaser  at  a  real  estate  foreclosure  sale 
which  is  defective  and  void  as  against  the  owner  of  the  equity  of 
redemption,  because  he  was  not  made  a  party,  becomes  an  assignee 
of  the  mortgage,  and  if  he  lawfully  enters  into  possession  of  the 
land,  becomes  a  mortgagee  in  possession.  Townshend  v.  Thomp- 
son, 139  N.  Y.  152;  cited  Croner  v.  Cotvdrey,  139  N.  Y.  471. 
Although  a  sale  in  foreclosure  be  a  nullity  as  to  the  owner  of 
the  equity  of  redemption,  who  is  not  made  a  party  to  the  action, 
it  is  not  void  as  a  whole,  but  the  purchaser  acquires  all  the  rights 
of  the  mortgagee,  and  if  he  thereafter  goes  into  possession  with 
the  consent  of  the  owner  of  the  equity  of  redemption,  he  becomes 
a  mortgagee  in  possession,  and  a  purchaser  at  a  sale  in  fore- 
closure, given  after  the  one  first  foreclosed,  cannot  maintain  eject- 
ment against  him.      ]Vi)ig  v.  Field,  35  Hun,  617. 

It  seems  that  after  a  mortgage  is  foreclosed  by  an  admin- 
istrator after  proper  service  on  all  the  defendants,  the  judg- 
ment and  sale  on  such  foreclosure  cannot  be  assailed  on  the 
ground  of  any  irregularity  or  even  want  of  jurisdiction,  in  grant- 
ing the  letters  of  administration  to  plaintiff.  Abbott  v.  Curran, 
98  N.  Y.  665.  Foreclosure  and  sale  of  a  mortgage  upon  a  lease 
containing  a  covenant  to  pay  rent,  expressed  as  binding  the  les- 
sees and  their  assigns,  does  not  impair  the  covenant  to  pay  rent. 


428  FORECLOSURE. 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

but  the  covenant  runs  with  the  land  and  binds  the  purchaser. 
Pardee  v.  Steward,  37  Hun,  259.  The  ordinary  provision  in  a 
judgment  of  foreclosure,  that  out  of  the  moneys  arising  from  the 
sale  of  the  mortgaged  property  the  referee  retains  the  amount  of 
any  lien  or  liens  for  taxes  or  assessments,  does  not  estop  a  pur- 
chaser from  questioning  the  validity  of  the  tax  sale.  Simms  v. 
Vought,  94  N.  Y.  654.  A  judgment  in  foreclosure  is  ineffectual 
to  cut  off  an  apparent  lien  where  the  order  of  publication  of  the 
summons  against  the  lienor  was  granted  upon  an  insufficient 
affidavit,  and  a  purchaser  will  not  be  compelled  to  accept  title 
thereunder  although  it  is  proved  in  the  case  that  such  lien  has, 
in  fact,  been  discharged.  Argall  v.  Bac/irae/i,  18  Week.  Dig. 
267.  A  judgment  in  foreclosure  does  not  bar  a  tax  sale  purchaser 
who  is  not  a  party.  Becker  v,  Howard,  66  N.  Y.  5.  Hence,  a 
purchaser  at  a  tax  sale,  subsequent  to  the  mortgage,  is  a  proper 
party  to  the  foreclosure.  Roosevelt  Hospital  \.  Dowley,  57  How. 
489.  The  owner  of  a  half  of  the  equity  of  redemption  was  not 
made  a  defendant.  Held,  that  the  foreclosure  was  void  as  to 
him  and  his  assigns,  and  they  had  twenty  years  to  bring  suit  to 
gain  possession.  Schrh'erv.  Schriver,  86  N.  Y.  575,  affirming  12 
Week.  Dig.  328;  s.  c.  13  Week.  Dig.  436. 

Sub.  3.   Motion  to  Vacate  Judgment  and  Appeal. 

Defendant's  motion  to  set  a  judgment  in  foreclosure  aside  will 
not  be  granted  as  a  favor,  where  he  shows  no  defence  or  merits, 
but  relies  on  merely  techncial  irregularities.  White  v.  Coulter,  i 
Hun,  357;  reversed  in  part,  59  N.  Y.  629,  without  passing  on  this 
point.  Where,  after  judgment  in  foreclosure,  the  debtor  paid 
large  sums  to  plaintiff's  attorney,  who  divided  them  with  one  of 
the  plaintiffs,  who  were  trustees,  without  the  knowledge  of  the 
others,  the  trust  fund  receiving  no  moneys,  held,  that  the  judg- 
ment should  not  be  set  aside  or  leave  given  to  put  in  a  supple- 
mental answer  setting  up  usury,  nor  should  credit  be  given  on  the 
judgment.     Stout  v.  Rider,  12  Hun,  574. 

In  case  of  railroad  mortgage,  where  motion  was  made  to  vacate 
judgment  on  the  ground  it  was  more  favorable  to  plaintiff  than  was 
asked  in  the  complaint,  it  was  denied.  Peck  v.  N.  V.  cr  N.  J. 
R.  R.  Co.  85  N.  Y.  246,  dismissing  appeal  from  22  Hun,  129. 
But  a  tenant  of  the  mortgagor  may  be  allowed  to  come  in  and 
defend  on  the  ground,  after  judgment  and  sale,  that  the  mort- 


^/f 


FORECLOSURE.  429 


Art.  7.     Judgment,  the  Character  and  Extent  of  Relief. 

gagor  is  the  real  owner  of  the  mortgage,  and  the  action  is  merely- 
brought  to  dispossess  such  tenant.  Read  v,  Stokes,  5  Week.  Dig. 
438.  As  to  all  provisions  relating  to  sale  of  the  mortgaged 
premises,  and  as  to  a  motion  for  resale,  see  §  1678.  As  to  the 
proper  practice  where  a  substituted  service  on  an  infant  was 
irregularly  made,  see  Wood  v.  Kroll,  43  Hun,  328.  Failure  to 
publish  notice  of  postponement  of  sale,  pursuant  to  §  1678,  is  a 
mere  irregularity,  and  does  not  constitute  a  jurisdictional  defect ; 
it  is  ground  for  setting  aside  the  sale  upon  seasonable  application 
by  a  party  to  the  suit,  but  is  not  available  to  a  purchaser  two 
years  after  confirmation  of  the  sale,  no  objection  having  been 
made  by  any  of  the  parties  to  the  action.  Bcckstein  v.  Schultz,  45 
Hun,  191.  Where  the  sole  plaintiff  dies  after  the  report  of  the 
referee  as  to  amount  due,  the  entry  of  judgment  thereafter  in  the 
name  of  the  original  plaintiff,  and  a  sale  without  revivor  by  the 
personal  representatives,  are  mere  irregularities  which  will  not 
defeat  the  title  of  the  purchaser.  Smith  v.  Joyce,  1 1  Civ.  Pro.  R. 
257,  citing  Harrison  v.  Simons,  3  Edw.  Ch.  416;  Lynde  v.  C Don- 
ne/l,  21  How.  34;  Hays  v.  ThotJias,  56  N.  Y.  522.  See,  also, 
Minthorne  v.  Tompkins,  2  Paige,  102 ;  Goelet  v.  Lansing,  6  Johns. 
Ch.  75,  as  to  irregularities  in  sale  and  their  effect.  Failure  to 
appoint  a  guardian  ad  litem  for  an  infant  defendant  in  foreclosure 
is  an  irregularity,  but  a  judgment  taken  is  voidable,  not  void.  It 
may  be  opened  on  timely  application,  but  the  right  will  be  lost 
by  laches.  Feitncr  v.  Hoeger,  15  St.  Rep.  376,  citing  McMurray 
V.  McMurray,  66  N.  Y.  175. 

On  appeal  from  an  order  directing  the  sale  of  mortgaged 
premises,  appellant  has  his  election  to  give  an  undertaking  con- 
ditioned against  waste  and  to  pay  for  use  and  occupation  or  to 
pay  any  deficiency  which  may  occur  on  the  sale.  Horton  v. 
Childs,  1 1  Supp.  797.  An  undertaking  on  appeal  in  a  foreclosure 
case  against  waste  and  for  value  of  use,  operates  as  a  stay  of  pro- 
ceedings without  a  covenant  to  pay  a  deficiency.  Werner  v. 
Tuch,  29  St.  Rep.  36;  s.  c.  119  N.  Y.  632. 

An  undertaking  on  appeal  to  the  General  Term  from  a  judg- 
ment of  foreclosure,  which  states  that  the  sureties  "do  hereby, 
pursuant  to  the  statute,  jointly  and  severally  undertake,"  that 
appellant  "will  pay  all  costs  and  damages  which  may  be  awarded 
against  her  on  said  appeal,  not  exceeding  $500,"  and  on  affirm- 
ance or  dismissal,  pay  the  sum  recovered  or  directed  to  be  paid 


430  FORECLOSURE. 


Art.  8.  Sale  and  Manner  of  Conducting  it.     Art.  9.  Judgment  for  Deficiency. 

by  the  judgment,  constitutes  merely  a  valid  common-law  agree- 
ment, and  the  words  used  are  to  be  given  their  usual,  ordinary 
significance,  and  have  not  the  force  and  effect  of  statutory  under- 
taking. The  Concordia  Savi?igs  and  Aid  Assn.  v.  Read,  35  St. 
Rep.  222. 

Where  a  mortgagor  has  had  his  day  in  court  and  failed  to  offer 
any  proof  in  support  of  his  defence,  a  judgment  recovered  should 
not  be  set  aside  unless  there  is  clear  proof  that  the  moving  par- 
ties had  suffered  an  injustice.  Cook  v.  New  Amsterdam  Real 
Estate  Association,  2  App.  Div.  55. 

ARTICLE    VIII. 
Sale  and  Manner  in  which  it  is  Conducted.     Rule  63. 

Rule  63.  Mortgage  and  assignments  to  be  filed  or  recorded  before  convey- 
ance —  expense  allowed  in  costs. 

Whenever  a  sheriff  or  referee  sells  mortgaged  premises,  under  a  decree  or 
order,  or  judgment  of  the  court,  it  shall  be  the  duty  of  the  plaintiff,  before  a  deed 
is  executed  to  the  purchaser,  to  file  such  mortgage  and  any  assignment  thereof 
in  the  office  of  the  clerk,  unless  such  mortgage  and  assignments  have  been  duly 
proved  or  acknowledged,  so  as  to  entitle  the  same  to  be  recorded;  in  which  case, 
if  it  has  not  been  already  done,  it  shall  be  the  duty  of  the  plaintiff  to  cause  the 
same  to  be  recorded,  at  full  length,  in  the  county  or  counties  where  the  lands  so 
sold  are  situated,  before  a  deed  is  executed  to  the  purchaser  on  the  sale;  the  ex- 
pense of  which  filing  or  recording,  and  the  entry  thereof,  shall  be  allowed  in  the 
taxation  of  costs;  and,  if  filed  with  the  clerk,  he  shall  enter  in  the  minutes  the 
filing  of  such  mortgage  and  assignments,  and  the  time  of  filing.  But  this  rule 
shall  not  extend  to  any  case  where  the  mortgage  or  assignments  appear,  by  the 
pleadings  or  proof  in  the  suit  commenced  thereon,  to  have  been  lost  or  de- 
stroyed. 

This  subject  of  sale  of  real  estate  with  the  rules  relative  thereto, 
is  treated  under  §§  1677  and  1678,  under  chapter  XI,  where  Rule 
62,  regulating  sales  in  New  York  and  Brooklyn,  and  Rule  67, 
requiring  notice  of  application  for  stay,  will  be  found. 

ARTICLE  IX. 

Judgment  for  Deficiency. 

If  there  is  no  bond  and  no  covenant  to  pay  the  money,  and 
no  pre-existing  debt,  the  remedy  is  confined  to  the  land.  Gay- 
lord  v.  Knapp,  15  Hun,  87.  The  grantee  in  a  deed  taken  merely 
as  security,  though  he  assumed  an  existing  mortgage  on  the  prop- 


FORECLOSURE.  43 1 


Art.  9.     Judgment  for  Deficiency. 


erty,  held,  not  liable  to  the  mortgagee  for  a  deficiency  on  fore- 
closure. Root  V.  Wright,  84  N.  Y.  72.  A  personal  judgment  for 
a  deficiency  cannot  be  rendered  against  a  non-resident  defendant, 
who  neither  appeared  in  the  action  nor  had  been  served  with  pro- 
cess within  this  State.  Schwmgcr  v.  Hickok,  53  N.  Y.  280 ; 
Bartlett  v.  McNeil,  60  N.  Y.  53. 

A  married  woman  is  not  liable  on  a  bond  secured  by  a  mort- 
gage on  her  separate  estate  where  the  loan  was  to  her  husband, 
and  the  bond  does  not  charge  her  separate  estate.  McKeon  v. 
Hagan,  18  Hun,  65;  Life  Asso.  of  America  v.  Lessler,  19  Alb. 
L-  J.  399-  But  see  chap.  361,  Laws  of  1884,  as  to  right  of  mar- 
ried women  to  contract  with  same  power  as  if  sole.  But  previous 
to  this  act  it  was  presumed  that  where  a  married  woman  received 
money  on  a  promise  to  repay  it,  although  the  bond  did  not  charge 
her  separate  estate,  the  money  was  borrowed  for  the  benefit  of 
such  estate.  Williamson  v.  Duffy,  19  Hun,  312.  Contra,  Mack 
V.  Austin,  29  Hun,  534.  A  wife  is  not  liable  to  pay  a  deficiency 
where  the  claim  is  based  upon  the  assumption  contained  in  the 
deed  conveying  the  property  to  her,  of  which  she  had  no  knowl- 
edge, and  which  was  made  as  a  gift  from  her  husband  to  her. 
Munson  v.  Dyett,  56  How.  333.  Where  a  loan  is  made  to  hus- 
band and  wife  jointly  on  their  joint  property,  a  judgment  for  de- 
ficiency may  be  entered  against  the  wife,  and  such  judgment  will 
be  deemed  final  and  only  reviewable  on  direct  appeal.  Bert  v. 
Palmer,  22  Week.  Dig.  282,  A  married  woman  who  takes  a 
conveyance  assuming  the  payment  of  a  mortgage  is  liable,  though 
she  has  no  other  property.  Casliman  v.  Henry,  75  N.  Y,  103. 
Contra,  Manhattan  Life  Ins.  Co.  v.  Stover,  14  Hun,  153.  A  plain- 
tiff who  omits  to  take  judgment  as  he  is  entitled,  should  be  held 
barred  from  leave  to  amend  by  a  long  delay,  and  the  Court  of 
Appeals  will  not  review  the  General  Term  decision  refusing  leave. 
Grant  v.  Griswold,  21  Hun,  509;  on  appeal,  82  N.  Y.  569. 
Where  the  judgment  of  foreclosure  does  not  provide  that  a  cer- 
tain defendant  shall  be  Hable  for  a  deficiency,  an  order  upon  the 
referee's  report  of  sale  directing  such  judgment  is  irregular.  Day 
v.  Johnson,  5  Week.  Dig.  237.  A  grantee  who  has  covenanted 
to  pay  a  mortgage  is  not  bound  to  pay  a  deficiency  if  he  has 
been  evicted  by  paramount  title.  Dunning  v.  Leavitt,%^  N.  Y. 
30.  Where  the  mortgagor  sells  the  equity  subject  to  the  mort- 
gage, and  the  purchaser  assumes  the  payment  as  a  portion  of  the 


432 


FORECLOSURE. 


Art.  9.     Judgment  for  Deficiency. 


purchase  money,  the  latter  becomes  personally  liable  for  the  pay- 
ment of  the  debt  in  the  first  instance,  and  if  the  mortgagor  is 
compelled  to  pay  it,  he  can  recover  it  from  the  purchaser  of 
the  equity.  Halsey  v.  Reed,  9  Paige,  447 ;  Marsh  v.  Pike,  10 
Paige,  595 ;  Blyer  v.  Mulholland,  2  Sandf.  Ch.  478 ;  Ferris  v. 
Crawford,  2  Den.  595;  Cornell  v.  Prescott,  2  Barb.  16;  Thayer  v. 
Marsh,  11  Hun,  501  ;  Russell  v.  Pistor,  7  N.  Y.  171 ;  Hartley  v. 
Harrison,  24  N.  Y.  170;  Comstock  v.  Drohan,  71  N.  Y.  9.  So 
also,  as  to  the  grantee  of  a  grantee.  Marsh  v.  Pike,  10  Paige,  595. 
It  was  held  in  71  N.  Y.  9,  supra,  that  where  the  grantee  of  the 
premises  was  not  made  a  party  to  the  action,  the  mortgagor  was 
not  bound  to  give  him  notice  in  order  to  hold  him  for  deficiency. 
See,  also,  Dreivry  v.  Clark,  16  How.  424.  But  where  the  plaintiff 
makes  the  mortgagor  a  party  for  the  purpose  of  obtaining  a 
judgment  for  deficiency  against  him,  the  surety  may  insist  that 
the  principal  debtor  shall  be  made  a  party.  Bigelozv  v.  Bush,  6 
Paige,  343. 

One  who  accepts  a  deed  in  which  he  assumes  the  payment  of  a 
mortgage  given  by  his  grantee  becomes  the  principal  debtor. 
Ranny  v.  Mc Mullen,  5  Abb.  N.  C.  246;  Wales  v.  Sherwood,  52 
How.  413.  Where  a  grantee  assumes  payment  of  a  mortgage  as 
part  of  the  consideration,  he  becomes  liable  to  the  mortgagee,  but 
there  is  no  liability  to  his  grantor.  Upon  acceptance  of  the  deed 
the  grantee  becomes  the  principal  debtor,  and  the  grantor  his 
surety  for  the  payment  of  the  mortgage  debt ;  if  the  latter  pays 
the  amount,  he  is  entitled  to  be  substituted  to  the  rights  of  the 
mortgagee  and  has  his  remedy  against  his  grantee.  If  the  grantor 
dies  before  foreclosure,  his  heirs,  and  not  his  administrators,  succeed 
to  his  rights,  the  heirs  being  the  parties  injured  by  the  breach  of 
the  covenant  to  assume.  Ayres  v.  Dixon,  78  N.  Y.  318.  Where 
there  is  a  covenant  in  a  deed  that  the  grantee  shall  pay  a  mort- 
gage executed  by  the  grantor,  the  latter  becomes  a  surety,  and 
extension  of  time  of  payment  by  the  holder  discharges  the  grantor. 
Calvo  V,  Davies,  73  N.  Y.  211  ;  Marshall  v.  Davies,  78  N.  Y.  415. 
And  if  the  mortgagee  releases  the  grantee  of  the  mortgagor,  the 
latter  is  discharged,  Paine  v.  Jones,  76  N.  Y.  274.  Where  the 
court  finds  that  the  plaintiff  is  entitled  to  a  personal  judgment  for 
a  deficiency  against  a  grantee  of  the  premises  who  is  made  defend- 
ant, but  plaintiff  enters  a  judgment  without  relief  against  such 
defendant  for  deficiency,  he  thereby  discharges  him  from  such 


FORECLOSURE.  433 


Art.  9.     Judgment  for  Deficiency. 


liability.  Mutual  Life  Ins.  Co.  v.  Hoyt,  15  Week.  Dig.  489.  In 
an  action  for  foreclosure  if  the  name  of  the  principal  debtor  is 
stricken  out  by  order  of  the  court,  and  judgment  against  him  for 
deficiency  expressly  waived  by  such  order,  judgment  for  deficiency 
cannot  be  ordered  against  the  surety.  Hencken  v.  James,  16 
Week.  Dig.  33.  A  conveyance  expressed  to  be  subject  to  a  mort- 
gage, but  without  any  stipulation  that  the  grantees  shall  pay  it, 
leaves  the  grantor  principally  liable  for  deficiency.  Briisse  v. 
Paige,  I  Keyes,  87;  Tillotson  v.  Boyd,  4  Sandf.  516;  Munnay  v. 
Smith,  I  Duer,  412. 

If  there  are  words  in  the  deed  importing  that  the  grantee  is  to 
pay  the  mortgage  to  which  the  land  is  subject,  he  is  deemed  to 
have  entered  into  an  express  agreement  to  do  so  by  the  acceptance 
of  the  deed  ;  no  precise  or  formal  words  are  necessary  if  the  intent 
appears.      Curtis  v.  Tyler,  9  Paige,  432 ;  Halsey  v.  Reed,  9  Paige, 
446;  Marsh  v.  Pike,  10  Paige,  595;   Vail  v.  Foster,  4  N.  Y.  312; 
Trotter  v.  Hughes,  12  N.  Y.  74;  Ricard  v.  Sanderson,  41    N.  Y. 
179;  Lawrence  Y.  Fox,  20  N.  Y.  268.     The  purchaser  of  a  mere 
equity,  without  any  words  in  the  grant  importing  that  he  assumes 
the  payment  of  the  mortgage,  does  not  bind  himself  personally 
to  pay  the  debt,  there  is  no  implied  promise  or  covenant.     If, 
however,  in  the  conveyance  there  are  words  importing  that  the 
grantee  will  pay  the  debt,  he  is  deemed  to  have  entered  into  an 
express  agreement  to  do  so,  although  he  does  not  sign  or  seal  the 
instrument.     The  acceptance  of  a  deed  containing  such  language 
is  evidence  of  the  most  satisfactory  kind  that  he  has  promised  to 
do  what  the  deed  says  he  is  to  do.     The  insertion  of  words  to  the 
effect  that  it  is  subject  to  a  mortgage  of  a  specified  amount  which 
has  been  estimated  as  part  of  the  purchase  money  and  deducted 
therefrom  does  not  bind  the  grantee  personally.     Collins  v.  Rowe, 
I   Abb.  N.  C.  97;  Belmont  v.  Coman,  22  N.  Y.  438.     Otherwise 
if  the  mortgage  debt  formed  part  of  the  consideration  of  the  pur- 
chase price  and  was  to  be  paid  by  the  purchaser  or  he  retained 
the  amount.     Dorr  v.  Peters,  3  Edw.  Ch.  132;  Smithy.  Tusslotv, 
84  N.  Y.  660. 

Under  a  conveyance  by  which  the  grantee  assumes  no  personal 
liability,  the  fact  that  the  grantee  takes  possession  and  receives 
the  rents  and  profits  does  not  make  him  liable  for  deficiency. 
Argallv.  Pitts,  78  N.  Y.  239.  A  grantee  of  the  equity,  subject 
to  a  mortgage,  is  not  liable  if  his  grantee  was  not  so  liable. 
[Special  Actions  —  28.] 


434 


FORECLOSURE. 


Art.  9.     Judgment  for  Deficiency. 


Smith  V.  Cross,  16  Hun,  487;  Cashman  v.  Henry,  75  N.  Y.  103; 
Vrooman  v.  Turner,  69  N.  Y.  280.  A  purchaser  of  the  equity 
from  one  not  personally  liable  to  the  holder  of  the  mortgage 
incurs  no  liability  by  the  insertion  of  a  clause  assuming  payment 
of  a  mortgage  as  part  of  the  consideration.  Smith  v.  Cross,  16 
Hun,  487;  Munson  v.  Dyett,  56  How.  333.  A  clause  in  a  second 
mortgage,  by  which  a  mortgagee  covenants  and  agrees  to  pay  a 
prior  mortgage,  does  not  render  him  personally  liable  to  the 
prior  mortgagee  for  the  first  mortgage  debt.  The  stipulation,  in 
such  a  case,  differs  from  a  similar  stipulation  in  a  conveyance,  in 
that  it  is  not  a  promise  made  by  the  mortgagee  to  the  mortgagor 
for  the  benefit  of  the  prior  mortgagee,  but  is  a  promise  for  the 
benefit  of  the  mortgagor  only,  to  protect  his  property  by  advanc- 
ing money  to  pay  his  debts.      Garnsey  v.  Rogers,  27  N.  Y.  233. 

It  does  not  matter,  as  regards  the  personal  liability  of  one  who 
has  assumed  to  pay  the  mortgage  debt,  that  he  took  the  deed 
merely  as  security  for  an  indebtedness  OAving  to  him  by  the  firm 
of  which  the  mortgagor  was  a  member.  Rieard  v.  Sanderson,  41 
N.  Y.  179.  See  Campbell  v.  Smith,  8  Hun,  6;  s.  c.  71  N.  Y.  26. 
After  a  mortgagor  had  conveyed  the  premises,  without  reference 
to  the  mortgage  and  for  full  value,  the  mortgage  was  foreclosed 
and  the  land  sold  for  more  than  the  amount  due  on  the  judgment. 
No  note  or  memorandum,  or  report  of  the  sale,  was  made.  The 
purchaser  paid  no  part  of  his  bid  and  the  sale  was  abandoned,  but 
the  purchaser  thereafter  obtained  a  conveyance  from  the  mort- 
gagor's grantee  and  also  paid  the  amount  called  for  by  the  fore- 
closure judgment,  and  received  an  assignment  thereof  and  of  the 
bond,  and  then,  by  leave  of  the  court,  brought  suit  upon  the  bond. 
Held,  that  the  foreclosure  sale,  even  if  binding  upon  the  plaintiff 
therein,  did  not  affect  the  rights  of  defendants  and  furnished  no 
defence,  as  they  were  bound  to  pay  the  bond  and  could  not  ask 
to  have  the  land  sold  to  discharge  the  debt ;  they  were  no  way 
damaged  and  acquired  no  equities  by  reason  of  the  failure  to 
complete  the  sale;  that  it  was  not  essential  for  plaintiff  to  set  up 
his  equities  in  his  complaint ;  he  had  a  right  to  sue  simply  as 
assio-nee  of  the  bond  and  to  prove  his  equities  in  answer  to  any 
defence  sought  to  be  established  by  defendants.  Wadsworth  v. 
Lyon,  93  N.  Y.  201.  Where  land  is  conveyed  subject  to  a  mort- 
gage, the  payment  of  which  is  expressly  assumed  by  the  grantee, 
and  the  mortgage  is  foreclosed  in  an  action  to  which  such  grantee 


FORECLOSURE.  435 


Art.  9.     Judgment  for  Deficiency. 


is  not  a  party,  and  a  judgment  for  deficiency  is  entered  against 
the  mortgagor,  the  latter  is  entitled  to  recover  the  deficiency  of 
his  grantee  without  deduction  of  the  foreclosure  costs;  he  need 
not  obtain  leave  of  the  court  to  sue.  Comstock  v.  Drohan,  71 
N.  Y.  9. 

A  person  who  guarantees  the  payment  of  the  mortgage  debt 
either  in  the  assignment  of  the  mortgage  to  plaintiff,  or  otherwise, 
is  a  proper  party  to  the  action,  and  judgment  can  be  rendered 
against  him  for  deficiency.  Bristol  v.  Morgan,  3  Edw.  Ch.  142; 
RtisJimorc  v.  Grade,  4  Edw.  Ch.  84.  One  who,  on  assigning  a 
mortgage,  guarantees  payment  thereof,  by  due  foreclosure  and 
sale,  may  be  joined  as  defendant  in  foreclosure  and  a  judgment 
for  deficiency  had  against  him.  Vanderbilt  v.  Schreycr,  91  N.  Y. 
392.  A  person  who  has  guaranteed  the  collection  of  the  mort- 
gage debt  is  a  proper  party,  but  in  such  case  the  judgment  should 
provide  that  no  execution  should  issue  as  against  him  until  an 
execution  against  the  parties  primarily  liable  has  been  returned 
unsatisfied.  Leonard  v.  Morris,  9  Paige,  90 ;  Harlem  Savings 
Bank  v.  Miekelshirgli,  57  How.  106.  It  has  also  been  held  that 
a  person  who  covenanted  that  a  mortgage  was  due  and  collectible 
was  a  proper  party.  Curtis  v.  Tyler,  9  Paige,  432.  Where  a 
mortgagor  conveys  premises  subject  to  a  mortgage,  which  the 
purchaser,  assumes  and  agrees  to  pay,  and  an  action  of  foreclosure 
is  brought,  and  the  mortgagee,  for  a  valuable  consideration,  stipu- 
lates not  to  apply  for  judgment  for  such  deficiency  against  the 
purchaser,  held,  that  from  the  time  of  this  discharge  the  mort- 
gagee was  bound  to  respect  the  rights  of  the  original  mortgagor 
as  surety.  He  ceased  to  have  any  right  of  action  against  such 
mortgagor,  and  the  mortgagor  ceased  to  be  liable.  Knobloek  v. 
Zschivetzke,  i  St.  Rep.  238.  Where  a  deed  contains  no  assump- 
tion of  a  mortgage  debt  or  agreement  to  pay  it,  parol  proof  of 
such  a  contract  does  not  contradict  the  deed,  and  is  competent 
to  establish  the  liability  of  the  grantee  to  pay  such  debt.  Peet  v. 
Kent,  5  St.  Rep.   134. 

Land  was  purchased  for  the  benefit  of  an  association,  but  title 
taken  in  the  name  of  an  individual,  who  gave  back  a  mortgage. 
The  receipt  for  the  money  loaned  specified  it  was  for  the  associa- 
tion. Held,  that  the  mortgagor  should  be  exonerated  from  the 
payment  of  any  deficiency  arising  on  the  mortgage.  Bozvman  v. 
Johnson,  6  St.  Rep.  22.     One  who  purchases  land  subject  to  a 


436  FORECLOSURE. 


Art.  9.     Judgment  for  Deficiency. 


mortgage  makes  the  land  thereby  the  primary  fund  for  the  pay- 
ment of  the  mortgage  debt,  and  this  is  so  although  the  mortgage 
contains  a  covenant  on  the  part  of  the  grantee  to  pay  the  mort- 
gage debt.  The  covenant  is  to  indemnify  the  grantor  against 
the  contingency  that  the  land  may  not  bring  enough  to  pay  such 
debt.  On  conveyance  by  a  mortgagor  subject  to  a  mortgage, 
the  meaning  of  the  transaction  between  the  parties  is,  the  land 
shall  pay  the  mortgage  debt  in  exoneration  of  the  personal  liabil- 
ity of  the  mortgagor  on  his  bond,  and  in  equity  on  such  a  con- 
veyance, the  land  is  treated  as  the  debtor  and  the  mortgagor  as 
surety  for  the  mortgage  debt.  If  the  deed,  in  addition,  contains 
a  covenant  on  the  part  of  the  grantee  to  pay  the  mortgage,  the 
land  still  remains  the  primary  fund.  In  re  Wilbur  v.  Warren,  104 
N.  Y.  192.  A  personal  obligation  on  the  part  of  the  grantee  is 
not  to  be  inferred  from  a  statement  in  his  deed  that  it  is  subject 
to  a  mortgage,  and  that  the  amount  thereof  "forms  part  of  the 
consideration  and  is  deducted  therefrom."  Equitable  Life  Ass. 
Co.  V.  Bostwick,  100  N.  Y.  628.  The  plaintiff  cannot  make  the 
heirs  or  devisees  of  a  deceased  mortgagor  parties,  they  having  no 
interest  in  the  mortgaged  premises,  for  the  purpose  of  obtaining 
a  judgment  for  deficiency  which  will  bind  the  real  estate  of  the 
decedent.  Leonard  v.  Morris,  9  Paige,  90.  But  the  personal 
representatives  of  a  deceased  mortgagor  may  be  made  parties  for 
the  purpose  of  obtaining  a  judgment  for  the  payment  of  deficiency 
out  of  the  assets  in  their  hands  in  due  course  of  administration. 
Collins  Petition,  6  Abb.  N.  C.  227;  Mitchell  v.  Boxvne,  63  How. 
I  ;  Lockwoodv.  Faweett,  17  Hun,  146;  Glacius  v.  Fogel,  88  N.  Y. 
439.  As  to  practice  to  reach  the  assets,  if  sufificient,  see  Williams 
V.  Eaton,  3  Redf.  Surr.  503.  Contra.^  Rhodes  v.  Evans,  Clarke's 
Ch.  168. 

Where  more  than  one  person  is  liable  personally  for  the  pay- 
ment of  the  mortgage  debt,  some  as  principal  and  others  as  sure- 
ties, the  judgment  should  provide  for  execution  for  the  deficiency 
against  the  defendants  in  the  order  in  which  they  are  liable. 
Curtis  v.  Tyler,  9  Paige,  435;  Luce  v.  Hinds,  Clarke's  Ch,  453; 
Weed  V.  Calkins,  24  Hun,  582. 

For  directions  as  to  form  of  judgment  where  surety  is  sued  in 
first  instance  for  deficiency,  see  J^ones  v.  Steinberg,  i  Barb.  Ch. 
250;  Rapelyc  \.  Anderson,  4  Hill,  472;  Goldsmith  v.  Brozvn,  35 
Barb.   484;  Farnham  v.  Mallory,   5  Abb.   (N.   S.)  380.     Where 


II 


FORECLOSURE.  437 


Art.  9.     Judgment  for  Deficiency. 


payment  was  guaranteed  by  an  assignor  in  an  assignment  of  a 
mortgage,  judgment  against  him  for  deficiency  is  proper.      Officer 
V.  Burchell,  44  Supr.  Ct.  575.      Where  there  is  no  answer,  and 
complaint  does  not  ask  judgment   for  deficiency,    it   cannot  be 
granted.     Bullwinkcr  v.  Ryker,  12  Abb.  311  ;  Simonson  v.  Blake, 
20  How.  484;  French  v.  New,  20  Barb.  484.     The  right  to  grant 
a  personal  judgment  against  the  mortgagor  or  his  surety,  or  other 
party  personally  liable   for  his  debts,  does  not  extend  to  cases 
where  the  complainant  had  no  right  to  come  into  court  to  fore- 
close the  mortgage  as  against  the  interest  of  any  one  in  the  mort- 
gage premises,  or  any  part  thereof.     Mann  v.  Cooper,  i  Barb.  Ch. 
185.      It  seems  that  an  obligor  in  a  bond,  though  not  joining  in  the 
mortgage,  may  be  made  defendant  and  held  liable  for  deficiency. 
Thorn  v.  Newby,  59  How.  120.     A  referee's  report  of  sale,  which 
shows  that  the  apparent  deficiency   was  wholly    caused    by    an 
unauthorized  allowance  to  the  purchaser,  is  treated  as  not  report- 
ing any  deficiency.     Bache  v.  Doscher,A,\  Supr.  Ct.  150,  affirmed, 
6'j  N.  Y.  429.      A  guarantor  of  a  mortgage  held  released  from  a 
liability  coming  from  a  deficiency  on  a  resale  which  had  been  so 
conducted  that  the  purchaser  on  the  first  sale  was  relieved  for 
irregularity  in  the  resale.     Riggs  v.  Boucicault,  20  Week.    Dig. 
184.      In   order  to  hold  a  defaulting  purchaser  liable  for  a  de- 
ficiency on  a  resale,  the  second  sale  must  be  made  on  the  same 
terms  as  the  first.      Riggs  v.  Pursell,  74  N.  Y.   370.      Where  an 
assignee  for  benefit  of  creditors  is  joined  as  a  defendant  in  fore- 
closure of  a  mortgage  assumed  by  the  assignors,  judgment  for 
deficiency  should  be  rendered  against  the  assignors,  not  against 
the  assignee.      Payne  v.  Smith,  28  Hun,  104.      The  act  of  a  cham- 
berlain or  treasurer  in  foreclosing  a  mortgage  without  order  of  the 
court  and  buying  in  the  property  for  the  benefit  of  the  bene- 
ficiaries,   does  not   render  him   personally  liable    for    deficiency 
though  the  property  is  worth  less  than  the  mortgage.      Chester- 
man  V.  Eyland,  8  Abb.  N.  C.  92;  s.  C.  81  N.  Y.  398,  affirming  17 
Hun,  520. 

Where,  pending  an  action  to  foreclose  a  mortgage  and  for  judg- 
ment again.st  the  mortgagor  and  a  guarantor  for  any  deficiency 
which  might  arise  on  the  sale,  the  guarantor  dies,  the  court  has 
no  power  to  order  a  judgment  for  a  deficiency  against  him  as  of 
a  date  prior  to  his  death,  nunc  pro  tunc,  without  bringing  in  his 
personal    representatives.       Grant   v.    Griswold,    21     Hun,    509; 


438  FORECLOSURE. 


Art.  9.     Judgment  for  Deficiency. 


appeal  dismissed,  82  N.  Y.  569.  One  liable  for  deficiency 
was  held  not  discharged  because  the  time  for  completing  the 
sale  was  extended,  and  a  resale  was  subsequently  ordered 
without  proceeding  against  the  original  purchaser  for  contempt 
to  compel  him  to  complete  his  purchase,  because  it  did  not  appear 
that  the  purchaser  was  personally  responsible  and  that  his  bid 
would  have  been  enforced ;  nor  that,  if  the  resale  had  been 
ordered  immediately,  the  premises  would  have  brought  more ; 
further,  that  there  was  no  fraud  and  no  request  that  the  pur- 
chaser should  be  proceeded  against,  and  that  a  plaintiff  in  fore- 
closure has  his  election  to  compel  the  purchaser  to  complete  his 
purchase  or  to  apply  for  a  resale.  Goodzvin  v.  Simonson,  74 
N.  Y.  133. 

A  mortgagee  cannot  have  judgment  for  deficiency  till  after 
sale  —  Loeb  v.  Willis,  22  Hun,  508  —  and  the  amount  of  defi- 
ciency must  be  ascertained  before  judgment  is  docketed.  De 
Agreda  v.  Mantel,  i  Abb.  134.  Deficiency  is  ascertained  as 
against  the  mortgagor  by  deducting  from  the  proceeds  all  taxes 
and  other  liens,  and  treating  balance  as  net  proceeds.  Marshall 
V.  Davies,  78  N.  Y.  414.  Lack  of  formal  order  of  confirmation 
is  an  irregularity  for  which  judgment  will  not  be  set  aside  where 
the  proceedings  are  conceded  to  have  been  correctly  taken.  Bick- 
zvell  v.  Byrnes,  23  How.  486;  Moore  v.  Shaw,  15  Hun,  428; 
appeal  dismissed,  ']']  N.  Y.  572.  It  was  formerly  held  otherwise. 
Bank  of  Rochester  v.  Emerson,  10  Paige,  115;  Hanover  Ins.  Co. 
V.  Tomlinson,  3  Hun,  630.  But  there  should  be  an  ex  parte  order 
confirming  report,  to  become  absolute  eight  days  after  notice  of 
entry  and  filing.  Bache  v.  Doschcr,  41  Supr.  Ct.  150,  affirmed, 
67  N.  Y.  429.  It  is  the  better  practice  for  a  defendant  who  is  not 
liable  for  a  deficiency,  upon  the  facts  alleged  in  the  complaint, 
and  who  has  not  assumed  the  mortgage,  to  move  to  vacate  so 
much  of  the  interlocutory  judgment  as  holds  him  so  liable,  but 
the  court  may  correct  such  an  error  by  refusing  to  confirm  the 
referee's  report,  and  refusing  judgment  and  execution  against 
such  defendant.  Argallw.  Pitts,  78  N.  Y.  239.  Leave  to  bring 
action  against  guarantors  for  deficiency  was  granted.  Kane  v. 
Prentice,  13  Week.  Dig.  361  ;  McKernon  v.  Robinson,  23  Hun, 
289,  affirmed,  84  N.  Y.  105.  But  it  is  a  matter  of  discretion. 
Equitable  Life  Ins.  Society  v.  Stevens,  63  N.  Y.  341.  For  the 
rule  in  a  peculiar  case  as  to  entry  of  judgment  for  deficiency,  see 


* 


FORECLOSURE.  439 


Art.  9.     Judgment  for  Deficiency. 


Sicwert  v.  Hamel,  33  Hun,  44.  The  statute  authorizing  judgment 
for  deficiency  in  actions  for  foreclosure  was  enacted  to  save  neces- 
sity for  actions  at  law,  to  allow  one  court  to  dispose  of  the  whole 
subject.  Thome  v.  Newly,  59  How.  120;  Eqtiitable  Life  Ins.  Co. 
V.  Stevens,   63  N.  Y.  341 ;  Sco field  \.  DoscJier,    72  N.  Y.  491. 

Where  a  judgment  adjudges  a  defendant  to  pay  any  deficiency 
which  may  arise  and  one  is  reported,  an  execution  may  issue  for 
such  deficiency  against  the  defendant  named  without  further 
application  to  the  court  or  notice  to  defendant  and  without  notice 
of  confirmation  of  the  report.  Hawley  v.  Whalen,  46  St.  Rep. 
512,  19  Supp.  521.  Nor  as  against  such  defendant  is  it  necessary 
to  enter  an  order  confirming  the  report.  Taylor  v.  Derrick,  46 
St.  Rep.  583,  19  Supp.  785. 

A  deficiency  judgment  may  be  entered  under  §  1627,  although 
there  may  have  been  no  sale  of  the  premises  in  an  action  in  which 
it  is  rendered,  by  reason  of  the  sale  of  the  premises  pending  such 
action,  in  an  action  to  foreclose  a  prior  mortgage,  if  the  proceeds 
of  such  sale  are  not  sufficient  to  satisfy  the  second  mortgage. 
Frank  v.  Davis,  29  Abb.  N.  C.  294,  reversing  61  Hun,  496,41  St. 
Rep.  292,  21  Civ.  Pro.  R.  374,  16  Supp.  369.  The  legatee  of  a 
grantor  of  a  mortgage  may  be  wholly  liable  for  a  deficiency  to 
the  extent  of  the  property  he  receives  from  the  grantor's  estate. 
Collier  v.  Miller,  62  Hun,  99,  42  St.  Rep.  66,  16  Supp.  633. 

An  assignee  of  a  judgment  in  foreclosure  may  sue  to  recover  a 
deficiency  thereon  without  first  obtaining  leave  of  the  court,  the 
prohibition  of  §  19 13  applying  only  to  the  original  parties  to  the 
action.  Knapp  v.  Valejitinc,  67  St.  Rep.  582,  24  Civ.  Pro.  331, 
32  Supp.  712. 

Where  the  grantees  in  a  deed  in  which  they  assumed  part  pay- 
ment of  a  mortgage  were  non-residents  of  the  State  and  not  per- 
sonally served  with  process  in  a  foreclosure  suit,  it  was  held  that 
they  could  not  in  that  action  be  charged  with  the  deficiency. 
Blass  V.  Terry,  87  Hun,  563,  68  St.  Rep.  378,  34  Supp.  475. 

In  foreclosure  cases,  the  question  of  liability  for  deficiency  must 
be  determined  by  the  judgment.  Wager  v.  Link,  134  N.  Y.  122. 
The  provisions  of  §  1627,  relating  to  judgments  for  deficiency 
ari.sing  upon  a  sale,  refer  to  such  a  sale  as  the  courts  in  this  State 
are  authorized  to  order.  Clark  v.  Simmo7is,  55  Hun,  176.  In  the 
absence  of  a  covenant  or  agreement  to  that  effect,  the  grantee  of 
lands  does  not  assume  a  personal  obligation  to  pay  existing  incum- 


440 


FORECLOSURE. 


Art.  9.     Judgment  for  Deficiency. 


brances.  Smith  v.  Cornell,  iii  N.  Y.  554;  Belmont  v.  Cowan, 
22  N.  Y.  438  ;  Equitable  Life  Ass.  Co.  v.  Bortwick,  100  N.  Y.  629. 
But  if  the  purchaser  of  part  of  mortgaged  premises  assumes  the 
payment  of  the  entire  mortgage,  he  becomes  the  principal  debtor 
and  is  bound  to  protect  the  portion  not  purchased  from  the  lien 
of  the  mortgage.      Wilcox  v.  Campbell,  106  N.  Y.  325  ;  S.  C.  8  St. 

Rep.  885. 

Foreclosure  of  a  mortgage  is  simply  in  rem,  and  if  the  instru- 
ment to  which  the  mortgage  is  collateral  is  unsealed,  no  personal 
judgment  can  be  had  where  the  Statute  of  Limitations  is  pleaded 
and  had  run  against  the  application.  Hulbert  v.  Clark,  57  Hun, 
558;  S.  C.  33  St.  Rep.  354. 

A  judgment  for  deficiency  may  be  enforced  by  an  assignee  of 
such  judgment  without  obtaining  leave  to  sue  thereon,  and 
although  the  mortgagee  has  realized  more  than  the  debt  by  sell- 
ing the  land  which  he  bought  at  the  foreclosure  sale.  Schultz  v. 
Mead,  8  N.  Y.  Supp.  663 ;  s.  C.  29  St.  Rep.  203. 

A  judgment  for  deficiency  may  be  entered  where  the  fore- 
closure is  against  lands  in  this  State  and  an  adjoining  State  with- 
out waiting  the  result  of  foreclosure  in  the  other  State.  Clark 
V.  Simmons,  55  Hun,  175;  S.  C.  8  N.  Y.  Supp.  74;  S.  C.  28  St. 
Rep.  738.  Where  there  is  no  bond  and  no  covenant  to  pay, 
there  is  no  personal  liability  for  a  deficiency.  Smith  v.  Rice,  12 
Daly,   307;    Gay  lord  v.  Knapp,  15    Hun,  87;  Mack  v.  Austin,  95 

N.  Y.  513- 

A  covenant  in  a  deed  by  which  the  grantee  assumes  and  agrees 
to  pay  a  mortgage  upon  the  premises  conveyed  after  it  has  come 
to  the  knowledge  of  the  owner  of  the  mortgage,  and  has  been 
assigned  and  adopted  by  him  as  a  security  for  his  own  benefit,  is 
not  revocable.  A  release  therefor  by  the  grantor,  without  the 
assent  of  the  mortgage  creditor,  under  such  circumstances  does 
not  discharge  the  grantee.  Gifford  v.  Corrigan,  117  N.  Y.  257. 
A  judgment  for  a  deficiency  must  be  recovered  in  order  to  sustain 
an  action  to  enforce  payment  of  the  deficiency  from  land  devised 
by  the  mortgagor.     Lockwoodv.  Fawcett,  17  Hun,  146. 

Where  the  original  indebtedness  is  set  forth  in  the  complaint 
in  an  action  to  foreclose  usurious  securities,  and  is  not  denied,  a 
personal  judgment  for  the  amount  thereof,  with  legal  interest, 
may  be  granted.  Troy  Carriage  Co.  v.  Simson,  15  Misc.  424,  37 
Supp.  846,  73  St.  Rep.  58. 


FORECLOSURE.  44I 

Art.  10.     Proceedings  when  Mortgage  Debt  is  not  all  Due. 

ARTICLE    X. 

Proceedings   when    Mortgage    Debt    is   not   all   Due. 

§§  1634,  1635,  1636,  1637. 

§  1634.  When  complaint  to  be  dismissed  on  payment  of  sum  due. 

Where  an  action  is  brought  to  foreclose  a  mortgage  upon  real  property,  upon 
which  a  portion  of  the  principal  or  interest  is  due,  and  another  portion  of  either 
is  to  become  due,  the  complaint  must  be  dismissed,  without  costs  against  the 
plaintiff,  upon  the  defendant  paying  into  court,  at  any  time  before  a  final  judg- 
ment directing  a  sale  is  rendered,  the  sum  due,  and  the  plaintiff's  costs. 

§  1635.  Payment  after  judgment ;  when  proceedings  stayed. 

In  a  case  specified  in  the  last  section,  if,  after  a  final  judgment  directing  a  sale 
is  rendered,  but  before  the  sale  is  made,  the  defendant  pays  into  court  the 
amount  due  for  principal  and  interest,  and  the  costs  of  the  action,  together  with 
the  expenses  of  the  proceedings  to  sell,  if  any,  all  proceedings  upon  the  judg- 
ment must  be  stayed;  but,  upon  a  subsequent  default  in  the  payment  of  princi- 
pal or  interest,  the  court  may  make  an  order,  directing  the  enforcement  of  the 
judgment,  for  the  purpose  of  collecting  the  sum  then  due. 

§  1636.  When  part  only  of  the  property  to  be  sold. 

Where  the  mortgage  debt  is  not  all  due,  and  the  mortgaged  property  is  so  cir- 
cumstanced, that  it  can  be  sold  in  parcels  without  injury  to  the  interest  of  the 
parties,  the  final  judgment  must  direct,  that  no  more  of  the  property  be  sold,  in 
the  first  place,  than  is  suflScient  to  satisfy  the  sum  then  due,  with  the  costs  of 
the  action  and  expenses  of  the  sale;  and  that  upon  a  subsequent  default  in  the 
payment  of  principal  or  interest,  the  plaintiff  may  apply  for  an  order,  directing 
the  sale  of  the  residue,  or  of  so  much  thereof  as  is  necessary  to  satisfy  the 
amount  then  due,  with  the  costs  of  the  application  and  the  expenses  of  the  sale. 
The  plaintiff  may  apply  for  and  obtain  such  an  order,  as  often  as  a  default 
happens. 

P  1637.  When  the  whole  property  may  be  sold. 

If,  in  a  case  specified  in  the  last  three  sections,  it  appears  that  the  mortgaged 
property  is  so  circumstanced,  that  a  sale  of  the  whole  will  be  most  beneficial  to 
the  parties,  the  final  judgment  must  direct,  that  the  whole  property  be  sold;  that 
the  proceeds  of  the  sale,  after  deducting  the  costs  of  the  action,  and  the  ex- 
penses of  the  sale,  be  either  applied  to  the  satisfaction  of  the  whole  sum  secured 
by  the  mortgage,  with  such  a  rebate  of  interest,  as  justice  requires;  or  be  first 
applied  to  the  payment  of  the  sum  due,  and  the  balance,  or  so  much  thereof  as 
is  necessary,  be  invested  at  interest,  for  the  benefit  of  the  plaintiff,  to  be  paid 
to  him  from  time  to  time,  as  any  part  of  the  principal  or  interest  becomes  due. 

The  provisions  relating  to  foreclosure  and  sale  for  installments 
not  due  at  commencement  of  suit  were  held  not  to  apply  to  an 
action  for  breach  of  a  covenant  for  support  accompanied  by  a 
mortgage ;  the  provision  applies  only  to  mortgages  conditioned 


442 


FORECLOSURE. 


Art.  lo.      Proceedings  when  Mortgage  Debt  is  not  all  Due. 

for  the  payment  of  money.  Fergusoit  v.  Ferguson,  2  N.  Y.  360. 
Where  the  mortgage  contains  a  clause  authorizing  the  mortgagee, 
upon  non-payment  of  interest,  to  elect  that  the  whole  amount 
shall  become  due,  and  he  has  so  elected,  he  cannot  be  compelled 
to  waive  the  agreement.  Nor  is  he  estopped  from  asserting  his 
right  of  election  by  commencement  of  suit  prior  to  the  thirty 
days,  by  setting  up  simply  default  in  payment,  or  by  receiving 
an  installment  of  the  principal.  He  has  a  right  to  file  an  amended 
and  supplemental  complaint  and  proceed  in  the  action.  Malcolm 
V.  Allen,  49  N.  Y.  448. 

In  an  action  to  foreclose  where  all  the  principal  was  not  due, 
the  decree  stated  the  sum  due  and  to  become  due.  The  mort- 
gagor paid  the  sum  due  and  costs,  which  was  accepted  by  the  mort- 
gagee, and  the  next  installment  was  also  so  paid.  After  the  last 
installment  fell  due,  the  plaintiff,  without  notice  to  defendants, 
applied,  by  petition,  for  leave  to  proceed  and  sell  the  mortgaged 
premises,  which  was  granted  on  the  petition ;  the  original  decree 
did  not  contain  any  provision  for  permission  to  proceed  thereon 
and  sell  the  premises  in  case  of  a  default  in  payment  of  future  in- 
stallments. Held,  that  the  proceedings  were  irregular  and  void,  and 
must  be  set  aside;  that  plaintiff,  by  accepting  payments,  waived 
making  the  payment  in  court,  and  taking  the  decree  in  the  usual 
form,  if  subsequent  installments  should  fall  due,  the  provisions 
of  the  statute  should  be  strictly  observed.  Lo?ig  v.  Lyons,  54 
How.  129. 

In  pursuance  of  a  judgment  directing  the  sale  of  certain  mort- 
gaged premises,  consisting  of  ten  vacant  lots,  or  so  much  thereof 
as  might  be  necessary  to  pay  the  amount  due,  the  referee  sold  all 
the  ten  lots  separately,  although,  on  the  sale  of  the  ninth  lot, 
enough  had  been  realized  to  pay  the  amount  due  and  all  charges, 
and  leave  a  surplus.  The  surplus  having  been  paid  to  the  cham- 
berlain, a  second  mortgagee  filed  a  claim  thereto.  Held,  that, 
although  the  sale  of  the  tenth  lot  by  the  referee  was  unauthorized 
by  the  judgment,  the  owner  of  the  equity  of  redemption  was 
estopped  from  questioning  the  validity  of  the  title  acquired  by 
the  purchaser  by  reason  of  the  acquiescence  therein,  and  his  fail- 
ure to  object  to  the  proceeding  had  for  the  distribution  of  the 
surplus.     McBride  v.  Lewisohm,  17  Hun,  525. 

If  the  premises  cannot  be  divided  the  decree  should  provide 
for  the  payment  of  the  money  to  the  mortgagee  in  payment  of  the 


FORECLOSURE.  443 


Art.  lo.     Proceedings  when  Mortgage  Debt  is  not  all  Due. 

mortgage  debt,  unless  some  safe  course  more  beneficial  to  the 
mortgagor  exists.  Knapp  v.  Burnham,  1 1  Paige,  330.  Where 
the  mortgaged  premises  were  in  a  city  and  laid  out  in  lots,  and 
only  part  of  the  amount  secured  due,  running  through  a  period 
of  fourteen  years,  and  the  plaintiff  tendered  a  stipulation  to  bid 
on  the  sale,  in  one  parcel,  the  whole  amount  due,  and  to  become 
due,  and  costs,  so  as  to  leave  no  deficiency,  held,  that  the  case 
came  within  the  statute  and  within  Suffern  v.  Johnson^  i  Paige, 
450,  making  it  the  duty  of  the  court  to  decree  a  .sale  of  the  whole 
premises  in  one  parcel  as  most  beneficial  to  all  parties.  Gregory 
V.  Campbell,  16  How.  417. 

In  an  action  to  foreclose  a  mortgage,  only  a  portion  of  which 
was  due,  the  judgment  provided  for  a  sale  and  the  appHcation  of 
the  proceeds  to  the  satisfaction  of  the  whole  sum  secured,  that 
in  case  of  deficiency  in  the  proceeds  to  pay  the  amount  reported 
as  actually  due,  the  defendants  liable  therefor  should  pay  such  de- 
ficiency, and  that  in  case  of  a  deficiency  in  the  proceeds  to  pay 
the  amount  reported  as  secured  and  unpaid,  that  plaintiff  might 
apply  for  execution  at  any  time  when  such  deficiency  should 
become  due,  according  to  the  conditions  of  the  bond ;  it  was  held 
that  the  judgment  was  correct  and  that  no  amendment  thereof 
was  necessary.     Brewer  v.  Longnecker,  40  St.  Rep.  614. 

Precedent  for  Petition  to  Sell  Balance  of  Mortgaged 

Premises. 

SUPREME  COURT  — Ulster  County. 


Jacob  P.  Hendricks,  in  his  own  right  and  as  the 
general  guardian  of  Jane  Margaret  DuBois,  an 

infant, 

agst. 

Lorenzo  DuBois  and  Christina  DuBois,  his  wife; 
Moses  W.  Schepmoes  and  Anna  E.,  his  wife; 
Elijah  Ellsworth  and  Sarah,  his  wife;  Teunis  H. 
Schepmoes,  Andrew  J.  Story,  ct  al. 


To  the  Supreme  Court  of  the  State  of  New  York  : 

The  petition  of  Jacob  P.  Hendricks,  in  his  own  right  and  as  the 
general  guardian  of  Jane  Margaret  DuBois,  the  above  plaintiff, 
respectfully  shows  that  a  judgment  of  foreclosure  and  sale  was 
entered  in  this  action  in  the  office  of  the  clerk  of  Ulster  county  on  the 
6th  day  of  April,  1875,  on  the  report  of  the  referee  therein,  whereby 


444  FORECLOSURE. 


Art.  lo.     Proceedings  when  Mortgage  Debt  is  not  all  Due. 

it  appears  that  the  sum  of  $999.22  was  due  on  the  bond  and  mort- 
gage, mentioned  in  the  complaint,  on  April  3,  1875,  and  that  the 
amount  secured  and  not  due  was  $2,213.67 ;  that  such  proceedings 
were  thereupon  had  upon  such  judgment,  that  under  and  by  virtue 
thereof  a  portion  of  the  premises,  described  in  said  judgment  and 
in  the  complaint  herein,  sufficient  for  the  payment  of  the  amount 
reported  due  on  said  bond  and  mortgage  and  interest  thereon, 
together  with  the  costs  and  disbursements  as  settled  by  the  clerk  of 
Ulster  county  and  entered  in  said  judgment,  was  sold  and  brought 
the  sum  of  $3,100,  which  said  amount  paid  the  costs  and  expenses 
on  said  foreclosure  and  a  portion  of  the  principal  sum  secured  on 
said  mortgage,  having  left  unpaid  on  said  mortgage  the  sum  of 
$460.06  with  interest  thereon  from  March  i,  1875;  that  the  premises 
so  sold  was  the  lot  firstly  described  in  said  judgment  and  complaint 
and  was  the  whole  of  the  premises  described  therein  except  the  lot 
lastly  described  therein,  which  said  lot  so  remaining  unsold  is 
bounded  and  described  as  follows:  (Here  insert  description.)  That 
under  and  by  virtue  of  the  terms  of  said  mortgage  the  interest 
thereon  was  payable  March  i  and  September  i  of  each  year;  that 
the  interest  due  on  the  amount  unpaid  on  said  mortgage  became  due 
and  payable  September  i,  1875,  and  remains  due  and  unpaid;  that 
no  person  has  appeared  in  said  action  except  the  defendants  De 
Graff  &  Busted,  who  have  appeared  by  their  counsel,  J.  M.  Van 
Wagonen  as  their  attorney;  that  none  of  the  defendants  are  infants 
or  absentees.  Wherefore  your  petitioner  prays  that  an  order  may 
be  allowed  in  this  action  founded  on  said  judgment  directing  a  fur- 
ther sale  of  the  lot  hereinbefore  described,  under  and  pursuant  in 
all  respects  to  the  said  judgment,  as  will  be  sufficient  to  satisfy  the 
amount  due  the  said  plaintiff  with  the  costs  of  this  petition  and  pro- 
ceeding, and  as  said  lot  is  not  capable  of  division,  this  petitioner 
prays  that  the  whole  of  said  lot  may  be  sold  and  the  proceeds  be 
applied  to  the  payment  of  such  costs  and  so  forth,  and  that  the  bal- 
ance be  applied  to  the  payment  of  the  mortgage  of  the  said  plaintiff 
to  the  extent  of  such  mortgage. 

Dated  September  14,  1885.  (Signature.) 

Precedent  for  Order. 

(Caption,  usual  form.) 
(Title  as  before.) 

On  reading  and  filing  the  petition  of  Jacob  P.  Hendricks,  the 
above  plaintiff,  by  which  it  appears,  among  other  things,  that  the  sum 
of  $460.06  remains  unpaid  on  the  decree  of  foreclosure  in  the  above 
action  with  interest  thereon  from  March  i,  1875,  after  the  appli- 
cation of  all  the  proceeds  of  the  sale  of  the  premises  sold  under 
said  decree,  that  interest  on  said  sum  of  $460.06,  from  March  i, 
1875,  became  due  and  payable  on  September  i,  1875,  and  still 
remains  in  default  and  unpaid;  that  all  the  premises  described  in 
said  complaint  and  decree  have  been  sold  except  a  single  lot,  which 
said  lot  would  be  sold  more  advantageously  by  being  sold  in  one 
parcel.     Now,  on  motion  of  R.  Bernard,  plaintiff's  attorney,  ordered 


FORECLOSURE.  445 


Art.  II.     Surplus  Proceedings. 


that  the  residue  of  said  mortgaged  premises  described  in  said  com- 
plaint and  judgment  in  this  action  remaining  unsold,  be  sold  under 
the  direction  of  the  referee  heretofore  appointed,  for  the  payment 
of  the  amount  remaining  unpaid  on  said  mortgage,  to  wit: — the 
sum  of  $460.06  and  interest  from  March  i,  1885,  together  with  the 
costs  of  these  proceedings,  $35,  under  and  pursuant  in  all  respects 
and  according  to  the  terms  of  and  direction  for  sale  contained  in 
said  judgment. 

And  it  is  further  ordered  that  the  said  defendants  and  all  persons 
claiming  under  them,  or  either  of  them,  after  the  filing  of  the  notice 
of  the  pendency  of  this  action,  be  forever  barred  and  foreclosed  of 
all  right,  title  and  interest  and  equity  of  redemption  of  or  in  the  said 
mortgaged  premises  so  sold,  or  any  part  thereof. 

SAMUEL  EDWARDS, 

Justice  Supreme  Court. 

ARTICLE    XL 
Surplus  Proceedings.    §  1633.     Rule  64. 

Sub.  I.  Rights  of  parties  to  surplus.     §  1633. 

2.  Method  of  distributing  surplus.     Rule  64. 

3.  Costs  and  appeal  from  order  in  surplus  proceedings. 

Sub.  i.  Rights  of  Parties  to  Surplus.     §  1633. 

§  1633.  Disposition  of  surplus. 

If  there  is  any  surplus  of  the  proceeds  of  the  sale,  after  paying  the  expenses 
of  the  sale,  and  satisfying  the  mortgage  debt  and  the  costs  of  the  action,  it  must 
be  paid  into  court,  for  the  use  of  the  person  or  persons  entitled  thereto.  If 
any  part  of  the  surplus  remains  in  court  for  the  period  of  three  months,  the 
court  must,  if  no  application  has  been  made  therefor,  and  may,  if  an  application 
therefor  is  pending,  direct  it  to  be  invested  at  interest,  for  the  benefit  of  the  per- 
son or  persons  entitled  thereto,  to  be  paid  upon  the  direction  of  the  court. 

The  surplus  moneys  realized  on  sale  by  advertisement  must,  by 
§  2404,  be  paid  into  the  Supreme  Court,  and  proceedings  had 
under  §§  2405-2408  as  to  distribution.  As  to  when  surplus 
moneys  which  accrue  from  sale  under  foreclosure  of  a  mortgage 
given  by  a  decedent  are  to  be  paid  into  Surrogate's  Court,  see  §§ 
2798,  2799.  As  to  the  jurisdiction  of  the  Surrogate  and  his 
powers  and  duties  in  such  cases,  stc  Matter  of  Stilkvcll,  68  Hun, 
406. 

Where  a  person  has  an  equitable  lien  on  the  surplus,  his  proper 
course  is  to  give  notice  to  the  master  who  makes  the  sale,  or  to 
file  it  with  the  clerk,  or,  if  a  referee  has  been  appointed,  he  should 
present  his  claim  to  the  referee.  Dc  Riiytcr  v.  Trustees  of  St. 
Peters  C/mre/i,   2  Barb.   Ch.  555.      But  it  is  said  in  Hiisted  v. 


446 


FORECLOSURE. 


Art.  n.     Surplus  Proceedings. 


Dakin,  ly  Abb.  137,  and  Kingw.  West,  lO  How.  333,  that  as  the 
rule  now  stands,  the  liens  referred  to  are  those  which  subject  the 
estate  to  be  sold  without  further  intervention  of  the  court,  and 
that  claims,  however  equitable,  which  have  not  matured  into  liens 
cannot  be  considered.  See  Mutual  Life  Ins.  Co.  v.  Bowen,  47 
Barb.  618.  See  the  latter  case  questioned  in  Bergen  v.  Carman, 
79  N.  Y.  146,  holding  that,  where  a  reference  is  ordered  as  to  sur- 
plus moneys,  a  lien  may  be  attacked  on  the  ground  of  fraud,  and 
it  matters  not  whether  the  action  is  partition  or  foreclosure ;  that 
this  is  the  most  convenient  method  for  the  disposition  of  claims 
in  such  cases.  Citing  Schafer  v.  Reilly,  50  N.  Y.  61  ;  Halstead  v. 
Halstead,  55  N.  Y.  442;  McRoberts  v.Pooley,  12  Civ.  Pro.  R.  139; 
Fliess  V.  Buckley,  90  N.  Y.  288.  The  rights  and  equities  of  the 
lienholders  or  claimants  are  before  the  court,  and  as  much  the 
object  of  its  care  as  those  of  the  owner  of  the  mortgage  foreclosed. 
DeForest  v.  Farley,  62  N.  Y.  628 ;  Bcekinan  v.  Gibbs,  8  Paige, 
511;  Tutor  V.Adams,  20  Hun,  131;  Livingston  v.  Mildrum,  19 
N.  Y.  440.  Contra,  Meller  v.  Dooley,  i  Law  Bull.  50;  Union  Dime 
Savings  Bank  v.  Osley,  4  Hun,  657. 

The  surplus  of  moneys  derived  from  a  sale  under  foreclosure, 
remaining  after  making  the  payments  demanded  in  the  judgment, 
belong  to  the  mortgagor  or  owner  of  the  equity  of  redemption, 
and  not  to  the  purchaser  on  the  foreclosure  sale.  Day  v.  Town 
of  New  Lots,  II  St.  Rep.  361.  In  case  of  surplus  moneys  arising 
on  sale  of  lands  of  a  decedent,  they  should  be  distributed  ratably 
among  all  the  general  and  judgment  creditors  of  the  deceased,  and 
in  such  case,  a  general  creditor  has  a  right  to  be  heard.  German 
Savings  Bank  v.  Sharer,  25  Hun,  409;  Loucks  v.  Van  Allen,  ii 
Abb.  (N.  S.)  427.  See  §  2798,  Code  Civ.  Pro.  ;  also  White  v. 
Poillon,  25  Hun,  69.  And  creditors  must  be  paid  before  legatees. 
Clark's  Case,  15  Abb.  227.  Where  both  claimants  to  surplus  are 
before  the  court,  a  final  disposition  of  the  controversy  may  be 
made.  Clarkson  v.  Skidmore,  46  N.  Y.  297.  The  lien  of  an 
attorney  on  a  fund  will  be  protected.  Atlantic  Savings  Bank  v. 
Hiler,  3  Hun,  209;  Atlantic  Savings  Bank  v.  Hetterick,^  T.  &  C. 

239- 

The  liens  on  the  land  become  specific  liens  on  the  fund.  Liv- 
ingston V.  Mildriim.  19  N.  Y.  440;  Snyder  v.  Stafford,  ii  Paige, 
71;  Clarkson  v.  Skidmore,  46  N.  Y.  297;  Matthews  v.  Duryea, 
45   Barb.  69,  affirmed,  4  Keyes,   525  ;  Blydejihirgh  v.  Northrup, 


FORECLOSURE.  447 


Art.  II.     Surplus  Proceedings. 


13    How.    289;  Elmendorf  V.   Lockwood,  4   Lans.    396;  Fliess  v. 
Buckley,  22   Hun,  551,  90  N.  Y.  286.      To  enable  a  creditor  to 
enforce  his  claim  on  the  .surplus  moneys  he  must  have  a  lien  on 
the  land  ;  the  moneys  stand  in  the  place  of  the  land  for  purposes 
of  distribution  among   persons  having  vested   interests  or  liens 
upon  the  land.      Specific  devisees  are,  therefore,  entitled  to  sur- 
plus moneys  according  to  their  respective  interests,  subject,  how- 
ever, to  any  legal  claim  thereon.     A  simple  contract  debtor  can- 
not, however,  claim  any  portion  of  the  fund.      Dclaficld  v.  Whitc\ 
19  Abb.  N.  C.  104.      See  Short  v.  Bacon,  99  N.  Y.  275  ;  Dunning 
v.  Ocean  National  Bank^  61    N.   Y.   497.      The  proceeds  of  the 
sale,  after  satisfying  the  mortgage  debt,  may  be  said  to  stand  in  the 
place  of  the  equity  of  redemption  to  those  who  had  title  or  right 
to  that,  or  a  Hen  upon  it.      Jones  on  Mortgages,  vol.  2,  §   1687. 
But  a  claimant  who  is  not  a  party  is  not  entitled  to  any  of  the 
surplus.     Root  V.  Wheeler,  12  Abb.  294;  Mutual  Life  Ins.  Co.  v. 
Fruchtnicht,   3   Abb.    N.    C.    135;    Winsloxv   v.  MeCall,   32   Barb. 
241.      See  Koch  v.  Pureell.,  47  Supr.  Ct.  162.     The  moneys  must 
be  applied  to  the  liens  in  the  order  of  their  priorit}-.     Averill  v. 
Loucks,    6  Barb.   470;  Peabody  v.  Roberts,  47  Barb.  91  ;  Freanan 
v.  Schroeder,  43  Barb.  618;  People  v.  Bergen,    53  N.  Y.  404.      Sur- 
plus money  arising  from  the  sale  of  real  estate  stands  in  the  place 
of  the  land  for  all  purposes  of  distribution  among  persons  having 
vested  interests  or  liens  in  the  land.      Therefore  the  devisees  of  a 
mortgagor  on  a  foreclosure  sale  are  entitled  to  the  whole  of  the 
surplus  money  accruing  to  their  respective  interests  under  the 
will,  subject  to  other  legal  claims  which  were  or  have  become 
liens.     Delafield  v.   White,  7  St.  Rep.  301.     The  remedy  of  par- 
ties having  a  lien  on  a  surplus  is  by  motion  and  not  by  action, 
and  except  where  the  surplus  is  distributed  by  the  Surrogate's 
Court,  contract  creditors  are  not  in   a  position  to  assert  any  fur- 
ther equitable  lien   against   moneys  arising  from   sale  of  a  dece- 
dent's real  estate  than  they  would  have  been  if  he  were  living. 
Delafield  \r.   White,  7  St.  Rep.  301.      As  to  ri^ht  of  party  entitled 
to  surplus  moneys  to  bring  action  therefor,  see  Cope  v.   Wheeler, 
41  N.  Y.  303  ;  Matthews  v.  Duryee,  45  Barb.  69 ;   Bevier  v.  Schoon- 
maker,  29  How.  411.     The  mortgagee,  if  he  holds  the  surplus,  is 
regarded  as  a  trustee  for  the  persons  entitled  thereto.      Beecker 
V.   Graham,   2    Edw.   647  ;    People    v.    Ulster   Common   Pleas,    18 
Wend.  628.     It  is  held  in  Russell  v.  Duflon,  4  Lans.  399,  that  a 


448 


FORECLOSURE. 


Art.  II.     Surplus  Proceedings. 


mortgagee  who  has  received  a  surplus  from  the  purchaser  on 
statutory  foreclosure  is  liable  to  a  subsequent  judgment  creditor 
for  the  balance  of  the  surplus  after  deducting  amount  due,  but 
interest  runs  only  from  time  of  the  demand. 

Rights  of  the  parties  in  the  fund  are  not  affected  by  the  sale, 
and  the  court  will  apply  the  money  according  to  the  rights  of  the 
parties  as  they  existed  before  the  sale.     Astor  v.  Miller^  2  Paige, 
68.      If  there  be  judgment  liens  they  must  be  satisfied  before  the 
owner  can  claim  anything.      Eddy  v.  Smith,  13  Wend.  488.     As 
to  the  rule   where  mortgages  of   same  date  exist,   see  Eleventh 
Ward  Savings  Bank  v.  Hay,   55    How.  444;  Barber  v.  Gary,   li 
Barb.  549.      It  is  proper  for  the  plaintiff  to  prove  any  lien  subse- 
quent to  the  mortgage  foreclosed.     Field  v.  Hawxhurst,  9  How. 
75;  Beekman  Fire  Ins.  Co.  v.  First  M.  E.  Church,  29  Barb.  658; 
Mutual  Life  Ins.  Co.  v.  Frtichtnicht,  3  Abb.  N.  C.  135.      It  is  the 
duty  of  the  court  to  distribute  the  surplus  in  the  action ;  Mutual 
Life   Ins.   Co.  v.  Bowen,   47   Barb.   618;    and  the  authority    the 
referee  is  entitled  to  exercise  for  the  hearing  and  disposition  of 
the  claims  is  as  extensive  as  the  claims  themselves  and  the  legal 
and  equitable  objection  that   can    be  made  to  their  allowance. 
Kingslandv.   Chetwood,  39  Hun,  602;  Bowen  v.  Kaughran,    i  St. 
Rep.    121;  Snedeker  v.   Snedeker,    18    Hun,   355.      Wherever  the 
facts  would  warrant  the  filing  a  bill  in  equity  to  declare  a  lien  on 
a  fund,  a  referee  in  surplus  proceedings  may  hear  and  determine 
the    application  and  report  thereon.       Crombie  v.   Rosejitock,    19 
Abb.  N.  C.  312.     The  power  of  the  referee,  in   determining  the 
validity  of  a  claim,  is  not  confined  to  so   much   thereof  as  will 
exhaust  the  surplus,  but  his  determination  thereon   is  conclusive 
on  all  the  parties.     McRobcrts  v.  Poolcy,    12   Civ.    Pro.    R.  139. 
But  the  validity  of  a  judgment  cannot  be  attacked  collaterally  in 
the  proceeding,  except  on  grounds  of  jurisdiction.      White  v.  Bell, 
73   N.   Y.    256.      A  mortgage  to  secure   future    indorsements,   if 
recorded,  has    a    preference  over  subsequent  judgments  against 
the  mortgagor,  as  well  for  indorsements  made  before   the  judg- 
ments as  after.     Ackerman  v.  Hunsiker,  85  N.  Y.  43.      The  court 
should   make  such  an  order  as  while    producing    satisfaction  of 
plaintiff's  Hen  will  best  protect  the  rights  and   equities  of  subse- 
quent incumbrancers  of  every  nature.      Livingston  v.    Mildrum, 
19  N.  Y.  440.     Where  one  dies  seized  of  real  estate,  incumbered 
bv  a  mortg-ajje,  which  is  thereafter  foreclosed  and  the  lands  sold, 


FORECLOSURE.  449 


Art.  II.     Surplus  Proceedings. 


any  surplus  arising  on  the  sale  is  to  be  regarded  as  realty,  and 
goes  to  the  heirs  or  devisees  and  not  to  an  administrator,  and  an 
administrator  cannot  maintain  an  action  to  recover  the  same,  and 
this  is  so  although  the  mortgage  provides  the  surplus  shall  be 
paid  to  the  mortgagor,  his  executors  or  administrators.  Dunning 
V.  Ocean  National  Bank^  61  N.  Y.  497.  See  Flicss  v.  Buckley,  22 
Hun,  551  ;  American  Life,  etc.  Co.  v.  Van  Eps,  56  N.  Y.  601.  A 
tenant  for  years  has  an  equitable  interest  in  the  fund.  Clarkson 
V.  Skidmore,  46  N.  Y.  297.  Rent  in  arrears  may  be  ordered  paid 
from  the  proceeds.  Catlin  v.  Grissler,  57  N.  Y.  363.  On  sale 
of  a  lease  under  foreclosure,  ground  rent  in  arrear  should  be  paid 
out  of  the  proceeds;  rents  that  become  due  after  the  sale  should 
be  paid  by  the  purchaser.  Holden  v.  Sackett,  12  Abb.  473. 
Where  persons  holding  prior  mortgages  are  not  made  parties,  and 
no  provision  is  made  as  to  them  in  the  judgment,  the  sale  must 
be  subject  to  such  mortgages,  and  no  portion  of  the  proceeds  can 
be  applied  in  payment  thereof.     Bache  v.  Doscher,  6y  N.  Y.  429. 

Where  a  bond  and  mortgage  are  assigned  as  collateral  for  a 
loan,  with  an  agreement,  on  the  part  of  the  lender,  that  he  will, 
on  payment  of  the  mortgage,  pay  to  the  former  all  the  excess  of 
the  principal  over  and  above  the  amount  of  the  loan,  and  without 
any  agreement  as  to  a  foreclosure,  and  the  mortgage  is  foreclosed 
by  the  lender  without  making  the  borrower  a  party  thereto,  or  to 
any  other  proceeding  to  foreclose  him,  and  the  mortgage  premises 
are  bid  in  by  the  lender,  the  equitable  interest  which  the  bor- 
rower had  in  the  mortgage  attaches  to  the  land,  and  he  is  en- 
titled to  surplus  in  case  of  sale  thereof  by  the  lender  for  more 
than  the  amount  of  his  claim.  Dalton  v.  Smith,  86  N.  Y.  176, 
A  judgment  confessed  by  two  members  of  a  firm  of  three,  for  a 
partnership  debt,  has  a  priority  of  lien  over  a  subsequent  judg- 
ment recovered  against  all  three  parties.  Stevens  v.  Bank  of 
Central  N.  V.  31  Barb.  290. 

A  subsequent  judgment  will  not  be  preferred  over  a  prior  unre- 
corded mortgage,  given  to  secure  future  advances  or  liabilities, 
unless  there  has  been  a  fraudulent  intent  on  the  part  of  the  mort- 
gagee in  withholding  his  mortgage  from  record.  Thomas  v. 
Kelsey,  30  Barb.  268.  For  determination  of  right  to  surplus  on 
complicated  state  of  facts,  see  N.  V.  Life  Ins.  and  Trust  Co.  v. 
Vanderbilt,  12  Abb.  458.  As  to  when  second  mortgages  have 
priority  over  judgment  creditors  whose  judgments  are  prior  in 
[Special  Actions  —  2g.] 


450 


FORECLOSURE. 


Art.  II.     Surplus  Proceedings. 


date  of  docket,  see  Talbnan  v.  Farley y  i  Barb.  280 ;  Cook  v.. 
Kraft,  3  Lans.  515  ;  Ray  v.  Adams,  4  Hun,  332  ;  see,  also,  Oppen- 
Jicinicr  v.  Walker^  3  Hun,  30.  In  case  a  mortgage  is  given  on; 
property,  while  a  judgment  is  marked  reversed  on  appeal,  on 
which  it  would  otherwise  be  a  lien,  and  such  judgment  is  there- 
after restored  as  a  lien,  the  mortgage  is  entitled  to  priority  of  pay- 
ment out  of  the  surplus  money  arising  out  of  the  foreclosure  of  a 
prior  mortgage.  Union  Dime  Savings  Institution  v.  Duryea,  3 
Hun,  210.  The  mortgage  first  recorded  is  presumptively  the 
prior  lien ;  but  this  presumption  may  be  overcome  by  parol 
proof.     Freeman  v.  Schroeder,  43  Barb.  618. 

Judgments  over  ten  years  old  are  not  liens  on  the  surplus. 
Floyd  V,  Clark,  2  Law  Bull.  36.  It  is  said  that  the  general  liens 
of  judgment  creditors  of  a  mortgagor  cannot,  in  equity,  prevail 
against  prior  equitable  claims  upon  the  specific  fund  as  unpaid, 
purchase  money.  White  v.  Carpenter,  2  Barb.  217;  Arnold  v. 
Patrick,  6  Barb.  310;  Szveet  v.  Jacoeks,  6  Barb.  355.  A  judg- 
ment creditor,  who  has  purchased  under  his  judgment,  is  entitled 
to  the  surplus  arising  from  a  sale,  under  a  prior  mortgage,  in 
preference  to  a  junior  judgment  creditor.  Shcpard  v.  O' Neil,  ^ 
Barb.  125;  Snyder  v.  Stafford,  ii  Paige,  71.  A  vendee  of  land 
who,  in  an  action  of  specific  performance,  has  recovered  a  judg- 
ment for  the  purchase  money  paid,  which  is  adjudged  to  be  a  lien 
on  the  surplus  arising  on  a  sale  on  a  prior  mortgage,  from  the  time 
of  filing  his  lis  pendens,  is  entitled  to  priority  of  payment  of  his 
judgment  out  of  such  surplus,  as  against  a  judgment  creditor 
whose  judgment  was  recovered  after  the  filing  of  such  lis pejidejis, 
but  he  is  not  entitled  to  interest  thereon  from  the  time  of  such 
filing.  Hull  V.  Spratt,  i  Hun,  298.  Judgment  creditors  are  en- 
titled to  payment  in  order  of  their  priority ;  but  if  the  persons 
against  whom  the  judgments  were  acquired  had  only  an  equitable 
interest  in  the  property,  they  acquire  no  lien  and  no  priority.  Piirdy 
V.  Doyle,  i  Paige,  558.  Where  a  transfer  is  set  aside  as  fraudulent, 
as  against  creditors,  a  mortgage  given  by  the  fraudulent  transferee 
in  consideration  of  the  transfer,  and  assigned  to  a  bona  fide  pur- 
chaser for  value,  is,  as  between  the  parties  to  the  fraud  and  the 
creditors,  chargeable  wholly  to  the  former ;  and  on  its  foreclosure, 
the  creditors  are  entitled  to  the  whole  surplus.  Smart  v.  Bement,  4 
Abb.  Ct.  of  App.  Dec.  253.    See  Warden  v.  Brownings  12  Hun,  497. 

A  lessee  of  the  equity  in  mortgaged  premises,  with  covenants,. 


FORECLOSURE.  45 1 


Art.  II.     Surplus  Proceedings. 


has  a  right  to  share  in  the  surplus  in  preference  to  the  lessor ;  this 
right  is  an  incumbrance  on  the  land  to  the  extent  of  the  lessor's 
interest.  Clarkson  v.  Skidjiiore,  46  N.  Y.  297 ;  Douglass  v. 
Woodworth,  51  Barb.  79.  But  a  judgment  cuts  off  the  title  of  a 
tenant  holding  under  a  lease,  without  covenants  made  subse- 
quent to  the  mortgage,  and  he  is  not  entitled  to  share  in  the  sur- 
plus. B2irr  V.  Stenton,  43  N.  Y.  462.  A  lessee  of  mortgaged 
premises,  as  between  him  and  the  owner,  is  entitled  to  any  sur- 
plus arising  out  of  foreclosure  sale,  up  to  the  loss  resulting  to  him 
from  the  extinguishment  of  the  lease,  which  is  the  value  of  the 
use  of  the  premises  for  the  remainder  of  his  time,  less  the  rents 
reserved.     Larkiii  v.  Misland,    100  N.  Y.  212. 

A  general  lien  on  the  mortgaged  premises  will  be  preferred  to 
a  subsequent  specific  one,  where  the  holder  of  the  former  has  no 
other  fund  to  resort  to.  Mechanics'  Bank  v.  Edtvards,  2  Barb. 
545.  As  to  right  to  surplus  under  mechanic's  lien  not  continued 
by  the  court,  after  expiration  of  one  year,  where  premises  are 
foreclosed,  see  Emigi'aJit  Industrial^  etc.  Bank  v.  Goldman,  75 
N.  Y.  127.  It  is  held,  that  where  a  junior  mortgage  is  taken  as 
collateral  for  another  obligation,  that  the  mortgagee  was  not  en- 
titled to  receive  his  debt  out  of  the  surplus,  without  first  exhaust- 
ing his  principal  security.  Soule  v.  Ludlow,  3  Hun,  503.  One 
who  has  taken  a  mortgage  after  lis  pendens  filed,  has  a  right  to 
be  heard,  although  not  a  party.  Koch  v.  Purcell,  45  Supr.  Ct. 
162.  Where  the  mortgagors  severally  own  separate  undivided 
shares  in  the  property,  and  one  is  simply  surety  for  the  other, 
the  surety  has  a  right  to  have  the  share  of  the  principal  sold  first, 
if  enough  can  in  that  way  be  made  to  pay  the  debt,  or  if  the 
whole  has  been  sold,  and  a  surplus  produced,  to  have  such  sur- 
plus, to  the  extent  of  his  undivided  interest,  paid  to  him.  Erie 
Co.  Savings  Bank  v.  Roop,  80  N.  Y.  591.  A  mortgagee  recover- 
ing a  deficiency  judgment  against  a  mortgagor's  administrators, 
cannot  maintain  an  action  to  have  his  claim  declared  a  lien  on 
surplus  moneys,  on  foreclosure  of  mortgage  on  other  lands  given 
by  the  same  mortgagor  to  another  mortgagee ;  his  remedy,  aside 
from  that  against  the  personal  estate  of  the  decedent,  is  by  action 
against  the  mortgagors,  heirs  or  devisees,  and  if  they  are  insol- 
vent, the  court  may  direct  the  surplus  to  be  held  and  applied  to 
the  judgment.     Fliess  v.   Buckley,   24   Hun,   514,90  N.  Y.    286. 


Where  the  order  of  lien  is  as  follows:  The  first  mortcraee  having; 


452  FORECLOSURE. 


Art.  II.     Surplus  Proceedings. 


the  right  of  priority  over  the  second,  but  not  over  the  third,  the 
second  having  right  of  priority  over  the  third,  but  not  over  the 
first,  and  the  third  having  right  of  priority  over  the  first,  but  not 
over  the  second,  set  apart  the  amount  due  on  the  first,  from  the 
remainder  pay  the  second,  apply  the  portion  set  apart  as  due  on 
the  first  in  payment  of  the  third,  and  if  this  is  not  sufficient  to 
satisfy  it,  from  any  remainder  there  may  be,  if  still  there  is  a 
remainder,  apply  it  in  payment  of  the  first.  Bacon  v.  Van 
Schoonhoven,  19  Hun,  158.  A  mortgage  was  made  for  the  benefit 
of  a  brother  on  two  tracts  of  land,  one  owned  by  himself  and  his 
sisters  as  tenants  in  common,  the  other  owned  by  himself  individ- 
ually, a  judgment  was  afterward  obtained  against  him,  and  sub- 
sequently the  sisters  mortgaged  their  interest.  Held,  that  on  the 
foreclosure  of  the  first  mortgage,  the  mortgage  executed  by  the 
sisters  was  entitled  to  priority  in  the  surplus  money  over  the  judg- 
ment. Savings  Bank  of  Utica  V.  Wood,  17  Hun,  133.  A  widow 
is  not  entitled  to  a  gross  sum  in  lieu  of  her  annuity,  as  a  matter 
of  right,  upon  distribution  of  surplus  moneys  by  the  surrogate. 
Matter  of  Zahrt,  94  N.  Y.  605.  A  widow  is,  however,  entitled 
to  dower  in  surplus,  after  paying  incumbrances,  to  which  she  is 
bound  to  contribute.  If  the  husband  is  living,  one-third  m.ust  be 
invested  for  her  during  their  joint  lives;  if  dead,  she  is  entitled  to 
the  income  of  one-third  for  life.  Denton  v.  Nanny^  8  Barb.  618; 
Vartie  v.  Underwood,  18  Barb.  561  ;  Mattheivs  v.  Dnryee,^  Keyes, 
525.  The  claim  of  a  wife  of  a  mortgagor,  who  joined  in  the  exe-  vJ 
cution  of  the  mortgage,  for  the  value  of  her  right  of  dower  in  the 
surplus,  is  superior  to  claims  of  the  judgment  creditors  of  the 
mortgagor,  notwithstanding  a  provision  in  the  mortgage  for  the 
return  of  the  surplus,  if  any,  to  the  mortgagor,  his  heirs  or  assigns. 
N.  Y.  Life  Ins.  Co.  v.  Mayer,  19  Abb.  N.  C.  92,  citing  Mills  v. 
Van  VoorJiies,  20  N.  Y.  412;  Simar  v.  Canaday,  53  N.  Y.  298; 
Aikman  v.Harsell,  98  N.  Y.  186;  Moore  v.  Mayor,  Aldermen,  etc. 
of  New  York,  8  N.  Y.  iio.  Where  a  surplus  arises  upon  fore- 
closure of  a  first  mortgage  in  a  County  Court,  the  claims  thereon 
of  a  second  mortgage,  and  of  judgment  creditors,  for  deficiency 
on  foreclosure  of  other  mortgages  by  the  same  mortgagor,  may 
be  determined  in  County  Court  before  the  referee,  and  an  action 
cannot  be  maintained  for  that  purpose.  Fliess  v.  Buckley,  90 
N.  Y.  286.  After  a  sale  under  foreclosure  and  before  distribution 
of  the  surplus,  one  who  had  a  judgment  lien  at  the  time  of  sale 


FORECLOSURE.  453 


Art.  II.     Surplus  Proceedings. 


may  have  the  proceedings  opened,  that  he  may  be  heard  on  his 
right  to  share  in  the  surplus.  Citizens  Savings  Bank  v.  Van  Tas- 
scll,  5  Law  Bull.  50.  Where  it  appears  that  the  intent  in  execut- 
ing written  instruments  was  to  assign  shares  of  surplus  moneys, 
though  express  words  of  assignment  are  not  used,  such  instru- 
ments will  be  held  to  be  equitable  assignments;  the  referee  may 
report  directly  in  favor  of  the  equitable  assignee.  Bowen  v. 
Kaughran,  i  St.  Rep.  121,  A  judgment  creditor,  whose  lien  has 
been  suspended  on  appeal,  does  not  lose  all  interest  in  surplus 
moneys  derived  from  lands  on  which  the  judgment  was  a  lien. 
Emigrant  Industrial  Savings  Bank  v.  Lynch,  2  St.  Rep.  124. 
Where  the  mortgage  of  a  defendant,  on  foreclosure  of  a  prior 
mortgage,  is  adjudged  to  be  prior  to  a  part  of  plaintiffs,  but  it 
appears  that  it  is  involved  and  questioned  in  another  action,  it  is 
proper  that  distribution  await  the  result  of  such  litigation.  Bul- 
lymore  v.  Seward,  15  Week.  Dig.  283.  Where  an  administrator 
recovers  judgment  upon  a  former  judgment  of  his  decedent,  it  is 
no  answer  to  his  claim  for  surplus  that  the  judgment  v/as  sued 
without  leave  of  the  court.  Gerfnan  Savings  Bank  v.  Carrington, 
14  Week.  Dig.  475,  affirmed,  89  N.  Y.  632.  Where  the  plaintiff 
has  purchased  the  interest  of  creditors,  for  whose  benefit  a  junior 
mortgage  has  been  executed,  surplus  moneys  arising  on  the  sale, 
under  a  prior  mortgage,  will  not  be  directed  to  be  paid  into  court, 
as  plaintiff  is  entitled  thereto,  and  the  fund  would  only  be  bur- 
dened with  payment  of  fees  and  commissions.  Hoffjuan  v.  Sulli- 
van^ 23  Week.  Dig.  311.  All  surplus  moneys  must  be  paid  into 
court,  and  their  distribution  is  regulated  by  rules  of  the  Supreme 
Court. 

The  rule  that  surplus  moneys  arising  upon  a  foreclosure  sale 
belong  to  the  parties  having  interests  in  the  land  sold,  in  the 
order  of  the  priority  of  such  interests,  was  apolied  in  Wilkinson  v. 
Paddock,  57  Hun,  191  ;  S.  C.  32  St.  Rep.  535.  A  person  whose 
easement  in  mortgaged  premises  is  foreclosed,  is  entitled  to  share 
in  the  surplus  to  the  extent  of  her  interest  in  the  premises.  The 
surplus  moneys  represent  the  entire  estate  in  the  land  including 
the  interest  or  ownership  of  both  the  dominant  and  servient 
estates.      Winthrop  v.  Welling,  2  App.  Div.  229. 

No  claimant  can  successfully  assert  right  to  surplus  moneys 
unless  he  establishes  the  existence  in  his  favor  of  a  lien  upon  the 
land  which  he  could  have  enforced  against  it.     The  mere  fact  of 


454 


FORECLOSURE. 


Art.  II.     Surplus  Proceedings. 


filing  a  notice  of  pendency  where  no  complaint  in  the  action  is 
filed  does  not  create  a  Hen  upon  the  land  described  in  the  lis 
pendens.  Albro  v.  Bliune,  5  App.  Div.  309.  In  surplus  proceed- 
ings on  foreclosure  of  a  corporate  mortgage,  expenses  incurred  by 
a  reorganization  committee  may  be  adjusted,  and  a  claim  to  a 
lien  therefor  determined  and  enforced.  Raht  x.Attrill,  106  N.Y. 
423,  modifying  42  Hun,  414. 

In  proceedings  to  ascertain  liens  on  the  surplus  moneys,  the  rule 
in  equity  as  to  the  application  of  partnership  and  individual  prop- 
erty among  firm  and  individual  creditors  is  said  not  to  apply,  but 
that  the  rule  of  law  controls,  which  gives  a  judgment  creditor  of 
the  firm,  who  has  acquired  a  lien  upon  the  lands  of  a  partner  by 
docketing,  a  judgment  and  claim  upon  the  surplus  superior  to  the 
claim  of  a  junior  judgment  creditor  of  the  partner.  N.  V.  Life 
Ins.  Co.  V.  Mayer,  19  Abb.  N.  C.  92.  Where  a  purchaser  under 
foreclosure  buys,  under  the  belief  that  the  mortgage  was  a  first 
lien,  and  it  is  afterwards  discovered  that  there  was  a  prior  mort- 
gage, the  surplus  moneys,  after  satisfying  the  mortgage  debt,  may 
be  recovered  back  by  the  purchaser,  by  a  suit  in  equity.  Miiehl- 
berger  v.  ScJiilling,  3  N.  Y.  Supp.  705. 

A  lien  on  surplus  moneys  is  not  created  by  the  commencement 
of  an  action  to  set  aside  a  fraudulent  conveyance  of  the  premises. 
Swart  V.  Oaklej,  22  Abb.  N.  C.  125.  The  proceeds  of  a  sale 
under  foreclosure  given  by  the  debtor  to  secure  various  debts,  are 
paid  over  to  the  creditor,  not  as  a  voluntary  payment,  but  by 
operation  of  law  and  in  the  absence  of  directions  given  in  the 
security,  their  application  is  to  be  made  by  the  court  in  accord- 
ance with  equitable  principle.  The  rule  of  equity  in  such  cases 
where  the  proceeds  are  insuf^cient  to  satisfy  all  of  the  debt, 
decree  is  that  they  should  be  applied  pro  rata,  each  debt  sharing 
in  the  fund  without  regard  to  priority  of  date  or  to  the  fact  that 
for  some  of  the  debts  the  creditor  holds  other  security.  Orleans 
Co.  National  Bank  v.  Moore,  112  N.  Y.  543,  afifirming  48  Hun,  70. 

On  foreclosure  of  a  mortgage  given  by  defendant's  testator  to 
plaintiff,  plaintiff  became  the  purchaser;  subsequently,  the  decree 
and  sale  were  vacated ;  held,  that  plaintiff  was  entitled  to  the 
expenditures  made  by  him  for  repairs  and  taxes,  while  in  posses- 
sion as  a  charge  against  the  balance  in  his  hands,  the  amount  due 
on  the  mortgage  having  been  reduced  by  rents.  Wood  v.  Kroll^ 
21  St.  Rep.  764. 


FORECLOSURE.  455 


Art.  II.     Surplus  Proceedings. 


Where  the  judgment  debtor  acquired  title  to  real  property 
•through  the  death  of  the  owner,  it  was  held  that  the  judgment 
creditor's  lien  upon  the  surplus  arising  upon  the  foreclosure  of  the 
mortgage  of  the  lands  was  an  equitable  one,  and  that  judgment 
creditors  should  be  paid  upon  the  basis  of  equality,  the  debtor 
■not  having  had  title  to  the  property  at  the  time  the  judgments 
were  obtained  against  him,  and  that  until  the  property  became 
vested  in  the  debtor  by  the  death  of  the  prior  owner,  no  lien 
could  attach  thereon.      Goct:;  v.  Mott,  15  Civ.  Pro.  R.  11. 

A  judgment  against  executors  for  work  done  under  a  contract 
made  with  them  for  improvements  on  property  of  the  estate  other 
than  that  foreclosed,  is  not  a  lien  upon  and  is  not  payable  out  of 
the  surplus  money.  Mandcr  v.  Loiv,  12  Misc.  316,  33  Supp.  719, 
■67  St.  Rep.  R.  544,  24  Civ.  Pro.  368.  The  right  of  the  subse- 
quent mortgagee  to  the  surplus  moneys  arising  on  foreclosure 
of  the  first  mortgage,  is  not  affected  by  judgment  rendered  in 
an  action  to  which  such  mortgagee  was  not  a  party,  against  the 
person  who  gave  a  second  mortgage.  MccJumics  Savings  Bank 
V.  Sclyc,  83  Hun,  282,  31  Supp.  921,  64  St.  Rep.  728.  Where  the 
widow  united  in  the  mortgage,  she  will  be  entitled  to  dower  only 
in  the  surplus  after  payment  of  the  mortgage.  Smith  v.  Jackson, 
2  Edw.  Ch.  28;  Titus  v.  Ncilson,  5  Johns.  Ch.  458;  Haivlcy  m. 
Bradford,  9  Paige  Ch.  300. 

A  judgment  recovered  against  the  owner  of  the  equity  prior  to 
a  sale,  will  be  a  lien,  but  not  so  if  not  perfected  until  after  the 
sale  is  made,  although  docketed  before  the  surplus  moneys  are 
distributed.  Sxvcet  v.  Jacocks,  6  Paige,  355;  Dcnhani  v.  Cornell, 
6y  N.  Y.  556;  Hull  v.  Spratt,  i  Hun,  298.  The  widow  of  the 
owner  of  the  equity  of  redemption  is  entitled  to  dower  in  the 
surplus  the  same  as  in  the  land  before  the  sale.  Ebncndorf  w. 
Lockwood,  4  Lans.  393;  Denton  v.  Nanny,  8  Barb.  618;  Titus  v. 
Neilson,  5  Johns.  Ch.  458. 

Sub.  2.   Method  of  Distributing  Surplus.     Rule  64, 

Rule  64.  Application  for  surplus  moneys  —  reference  —  searches  —  unsatis- 
fied liens. 

On  filing  the  report  of  the  sale,  any  party  to  the  suit,  or  any  person  who  had  a 
lien  on  the  mortgaged  premises  at  the  time  of  the  sale,  upon  filing  with  the 
■clerk  where  the  report  of  sale  is  filed,  a  notice,  stating  that  he  is  entitled  to  such 
surplus  moneys  or  some  part  thereof,  and  the  nature  and  extent  of  his  claim, 


456  FORECLOSURE. 


Art.  II.     Surplus  Proceedings. 


may  have  an  order  of  reference,  to  ascertain  and  report  the  amount  due  to  him, 
or  to  any  other  person,  which  is  a  lien  upon  such  surplus  moneys,  and  to  ascer- 
tain the  priorities  of  the  several  liens  thereon;  to  the  end  that,  on  the  coming  in 
and  confirmation  of  the  report  on  such  reference,  such  further  order  may  be 
made  for  the  distribution  of  such  surplus  moneys  as  may  be  just.  The  referee 
shall,  in  all  cases,  be  selected  by  the  court.  The  owner  of  the  equity  of  redemp- 
tion, and  every  party  who  appeared  in  the  cause,  or  w^ho  shall  have  filed  a  notice 
of  claim  with  the  clerk,  previous  to  the  entry  of  the  order  of  reference,  shall  be 
entitled  to  service  of  a  notice  of  the  application  for  the  reference,  and  to  attend  on 
such  reference,  and  to  the  usual  notices  of  subsequent  proceedings  relative  to 
such  surplus.  Eut  if  such  claimant  or  such  ojvtier  has  not  appeared,  or  made  his 
claim  by  an  attorney  of  this  court,  the  notice  may  be  served  by  putting  the  same 
into  the  post-office,  directed  to  the  claimant  at  his  place  of  residence,  as  stated 
in  the  notice  of  his  claim,  and  upon  the  owner  in  such  manner  as  the  court  ?nay  di- 
rect. All  official  searches  for  conveyances  or  incumbrances,  made  in  the  pro- 
gress of  the  cause,  shall  be  filed  with  the  judgment-roll,  and  notice  of  the  hear- 
ing shall  be  given  to  any  person  having  or  appearing  to  have  an  unsatisfied  lien 
on  the  moneys,  in  such  manner  as  the  court  shall  direct;  and  the  party  moving 
for  the  reference  shall  show,  by  affidavit,  what  unsatisfied  liens  appear  by  such 
official  searches,  and  whether  any,  and  what  other  unsatisfied  liens  are  known 
to  him  to  exist. 

The  party  prosecuting  the  reference  must  produce  a  certificate 
of  the  clerk  with  whom  the  report  is  filed,  and  the  surplus  moneys 
deposited,  showing  that  no  notice  of  claim  to  such  surplus  was 
annexed  to  the  report  of  sale,  and  that  no  claim  to  the  same  has 
been  filed,  previous  to  the  order  of  reference,  or  if  claims  have 
been  filed,  stating  the  names  of  the  claimants  and  of  their  solicit- 
ors, if  any,  and  of  their  place  of  residence.  Hnrlbtirt  v.  McKay, 
8  Paige,  651.  An  incumbrancer,  who  has  neglected  to  file  his 
claim,  may  go  before  the  referee  and  file  his  claim  before  him. 
The  claims  must  be  verified,  and  the  referee  may  examine  the 
claimants  on  oath.  Hurlburt  v.  McKay,  8  Paige,  651.  The 
referee  will  take  the  oath  required  by  §  1016,  and  the  testimony 
of  the  witness  should  be  signed  under  Rule  30.  The  reference  is 
one  to  hear  and  determine,  subject  to  confirmation  by  the  court, 
which  has  ample  power  to  confirm,  set  aside,  or  to  refer  back  the 
report,  but  is  not  authorized  to  make  new  findings,  or  to  change 
those  already  made.  Mutual  Life  his.  Co.  v.  A?ithony,  23  Week. 
Dig.  427.  The  referee  should  ascertain  by  the  proper  certificate 
and  other  evidence,  that  all  the  claimants  and  other  parties  have 
been  notified  or  summoned  to  appear  before  him  on  such  refer- 
ence, and  the  fact  that  such  certificate  and  other  evidence  was 
produced  before  him  should  be  stated  in  his  report.  Hurlburt  v. 
McKay,  8  Paige.  651. 


FORECLOSURE.  457 


Art.  II.     Surplus  Proceedings. 


The  master's  report  on  a  reference  as  to  surplus  money  should 
show  that  the  parties  attended,  or  that  evidence  was  produced  to 
him  that  they  were  duly  summoned,  and  show  the  whole  amount 
of  the  surplus  moneys  and  who  is  entitled  thereto,  so  that  upon 
his  report  the  court  may  dispose  of  the  whole  fund.  Franklin  v. 
Van  Cott,  II  Paige,  129.  It  is  the  duty  of  a  person  having  a  lien 
to  go  before  the  master  upon  the  reference,  and  present  or  estab- 
lish his  claim  there,  and  when  he  neglects  to  do  so  without  any 
excuse  the  court  will  not  settle  his  right  to  surplus  moneys  on 
petition.  De  Rnyter  v.  St.  Peter  s  Church,  2  Barb.  Ch.  555.  The 
reference  as  to  liens  as  to  surplus  moneys  in  a  foreclosure  suit  is 
not  a  mere  collateral  reference,  but  is  a  direct  issue  necessarily  to 
be  determined  before  the  court  can  finally  and  completely  admin- 
ister the  fund  arising  from  the  sale  of  the  mortgaged  premises. 
Mutual  Life  Ins.  Co.  v.  Boiuen,  47  Barb.  618.  It  is  a  special  pro- 
ceeding. Mutual  Life  Ins.  Co.  v.  Anthony,  23  Week.  Dig.  427. 
The  surplus  moneys  arising  from  the  sale  of  lands  of  a  deceased 
mortgagor  will  not  be  ordered  to  be  paid  to  the  surrogate  for  dis- 
tribution unless  the  sale  be  within  four  years  after  the  granting  of 
letters  testamentary.  White  v.  Poillon,  25  Hun,  69.  For  prac- 
tice on  distribution  of  surplus  among  creditors  of  a  deceased  mort- 
gagor, see  German  Savings  Bank  v.  Sharer,  25  Hun,  409.  The 
authority  of  a  referee  on  surplus  proceedings  is  as  extensive  as  the 
claims  themselves,  and  the  objections  that  may  be  made  to  their 
allowance  and  his  report  will  not  be  set  aside  simply  on  account 
of  an  irregularity  in  receiving  or  considering  the  claims  v/hich 
were  not  filed  with  the  county  clerk.  The  provisions  of  Rule  64 
as  to  notice  are  not  intended  to  be  restricted  to  liens  appearing 
upon  the  record,  but  apply  to  any  which  may  be  shown  to  exist. 
Kingsland  v.  CJietwood,  39  Hun,  602. 

The  court  has  power,  in  its  discretion,  to  confirm  or  set  aside 
the  report  of  a  referee  appointed  to  ascertain  the  claimant's  rights 
to  surplus  moneys  in  foreclosure,  and  is  not  restrained,  in  the 
exercise  of  it,  to  the  rules  governing  a  new  trial.  Mutual  Life 
Ins.  Co.  V.  Salem,  3  Hun,  117,  and  Abb.  Dig.  Supp.  Foreclosure, 
page  1003;  Dold  v.  Haggerty.,  Sup.  Ct.  1881,  as  following  this 
rule  and  holding  that  the  court  may  direct  a  different  disposition 
to  be  made  of  the  fund  from  that  reported  by  the  referee,  or  it 
may  refer  the  case  back  for  a  further  hearing,  as  justice  may  appear 
to  require.     The  report  of  a  referee,  in  proceedings  for  the  dis- 


458 


FORECLOSURE, 


Art.  II.     Surplus  Proceedings. 


tribution  of  surplus  moneys  arising  on  foreclosure,  upon  confirma- 
tion by  the  court,  becomes  a  valid  and  binding  judgment.  Mc- 
Robcrts  V,  Pcolcy,  12  Civ.  Pro.  R.  139.  Where  a  general  creditor, 
who  had  no  notice  of  the  proceedings  to  distribute  surplus  until 
after  the  entry  of  the  order  confirming  the  report  of  the  referee, 
applies  to  be  made  a  party,  his  application  should  be  granted. 
German  Savings  Bank  v.  Sharer,  25  Hun,  409.  In  proceedings 
for  surplus,  claimants  put  in  evidence  transcripts  of  judgments 
recovered  by  them,  in  actions  commenced  against  a  person  of 
same  name  as  the  owner  of  the  equity.  It  was  held  there  was  a 
presumption  that  the  owner  of  the  equity  and  the  judgment 
debtor  were  the  same  person.  Bowery  Savings  Bank  v.  Keenan^ 
14  Week.  Dig,  143.  On  failure  of  an  attorney  to  pay  over  sur- 
plus moneys  received  by  him,  an  attachment  may  issue,  and  the 
burden  of  proving  that  he  has  paid  them  to  the  county  treasurer 
rests  on  him.  Matter  of  Silver  nail,  45  Hun,  575.  In  a  proceed- 
ing to  ascertain  the  priority  of  liens  to  surplus,  the  rule  of  equity 
as  to  the  application  of  partnership  and  individual  property  among 
firm  and  individual  creditors  does  not  apply,  but  the  rule  of  law 
applies  which  gives  a  judgment  creditor  of  the  firm,  who  has 
acquired  a  lien  by  judgment  upon  lands  of  a  partner,  a  claim  upon 
the  surplus  superior  to  the  claim  of  a  junior  judgment  creditor  of 
the  partner.     N.  Y.  Life  Ins.  Co.  v,  Mayer,  19  Abb.  N.  C,  92. 

Where  a  claim  to  surplus  has  been  rejected  in  a  proceeding  to 
distribute,  the  claimant  cannot  afterward  insist  that  the  moneys 
shall  be  paid  into  Surrogate's  Court.  Conicy  v.  Clark,  4  Supp. 
850, 

Where  surplus  moneys  had  been  paid  over  to  the  chamberlain 
in  the  city  of  New  York,  by  him  deposited  with  the  defendant, 
and  thereafter  by  an  order  duly  made,  countersigned  and  served, 
the  defendant  was  required  to  pay  such  moneys  to  certain  persons 
and  did  so,  held,  that  plaintiff,  representing  parties  in  fact  entitled 
to  such  moneys,  could  not  maintain  action  against  defendant 
therefor.  The  remedy  of  plaintiff  was  to  apply  for  an  order  stay- 
ing proceedings  of  defendant  upon  the  payment.  Szvart  v.  Cen- 
tral Trust  Co.  27  St.  Rep.  113. 

It  is  the  duty  of  the  referee  in  surplus  proceedings  to  incorpo- 
rate in  his  decision  all  the  facts  found  by  him  including  those 
found  at  the  request  of  any  party  to  the  proceedings.  Bigelow  v, 
Doying,  36  St.  Rep.  636.      On  the  distribution  among  rival  claim- 


FORECLOSURE. 


459 


Art.  II.     Surplus  Proceedings. 


ants  of  the  surplus  moneys  in  special  proceedings,  the  reference  is 
one  to  hear  and  determine,  subject  to  confirmation  by  the  court, 
which  has  ample  power  to  confirm,  set  aside  or  refer  back  the 
report,  but  is  not  authorized  to  make  new  findings  or  change 
those  already  made.  Mut7ial  Life  his.  Co.  v.  Anthony,  105 
N.Y.  57. 

The  general  rules  of  evidence  which  govern  the  court  on  the 
trial  of  an  action  apply  to  a  hearing  upon  a  reference  in  surplus 
money  proceedings,  and  the  established  rules  of  evidence  can  not 
be  changed  by  an  order  of  the  court  unless  in  the  case  where 
such  authority  may  be  specially  given  or  the  change  relates  to 
some  matter  which  rests  in  the  discretion  of  the  court.  Mutual 
Life  Ins.  Co.  V.  Anthony,  50  Hun,  loi  ;  appeal  dismissed,  105 
N.  Y.  57. 

A  motion  by  a  general  creditor  to  be  made  a  party  to  the 
action  that  has  been  brought  by  a  judgment  creditor  of  the  cor- 
poration whose  property  was  being  foreclosed  for  the  collection 
of  his  judgment,  and  asking  that  all  the  creditors  be  required  to 
exhibit  and  prove  their  claims  before  a  referee  to  be  appointed 
for  that  purpose,  was  properly  denied,  as  such  rights  could  be 
adjusted  in  the  proceedings  on  the  distribution  of  the  surplus. 
Hcrrinian  v.  Brooklyn,  etc.  R.  R.  Co.  12  St.  Rep.  877. 

The  surplus  moneys  belong  to  the  owner  of  the  equity  of 
redemption  unless  claims  are  filed  and  they  are  paid  over  on 
tho.se  claims.  Horn  v.  Toion  of  Nczv  Lots,  83  N.  Y.  loo;  Day  v. 
l\nvn  of  ArTt'  Lots,  107  N.  Y.  148.  The  moneys  in  surplus  pro- 
ceedings stand  in  the  place  of  the  land  for  the  purposes  of  distri- 
bution.     Dc  La  Field  v.  White,  19  Abb.  N.  C.   104. 

Where  surplus  moneys  had  been  invested  pursuant  to  the  order 
of  the  court,  until  the  death  of  a  certain  person  named,  and  upon 
her  death  to  await  the  further  order  of  the  court,  it  was  held  that 
a  party  entitled  thereto,  after  the  death  of  such  life  tenant,  could 
apply  in  the  action  in  which  the  order  directing  the  investment 
was  made,  for  a  distribution  of  the  surplus.  J'elten  v.  Vogt,  17 
St.  Rep.  112. 

The  provisions  in  a  judgment  of  foreclosure  directing  the  order 
in  which  the  different  parcels  shall  be  sold,  is  not  conclusive  on 
the  application  to  distribute  the  surplus.  On  foreclosure  of 
a  blanket  mortgage  on  property  upon  which  there  were  junior 
mortgages,  affecting  different  parcels,  some  of  which  mortgages 


460 


FORECLOSURE. 


Art.  ri.     Surplus  Proceedings. 


covered  one  and  others  more  than  one  parcel,  and  the  decree  pro- 
vided for  the  sale  of  the  separate  parcels  in  the  inverse  order  of 
alienation,  it  was  held  that  after  payment  of  the  mortgage  in  suit 
and  the  next  mortgage  upon  the  parcel  last  sold,  the  surplus  should 
be  distributed  among  the  holders  of  the  various  junior  mort- 
gages, according  to  the  dates  when  they  respectively  became 
liens,  except  that  in  no  case  should  a  greater  amount  be  paid  on 
account  of  the  liens,  on  any  one  lot,  than  was  realized  for  that  lot 
on  the  sale.  Biirchell  v.  Osborne^  19  St.  Rep.  52;  S.  C.  6  N.  Y. 
Supp.  863,  afifirmed,  119  N.  Y.  486. 

The  claim  of  mortgagor's  wife  to  dower  in  surplus  moneys 
can  be  entertained  in  surplus  proceedings.  N.  Y.  Life  Ins.  Co. 
V.Mayer,  12  St.  Rep.  119,  affirmed,  108  N.  Y.  655.  As  to  when 
lands  became  charged  with  an  equitable  lien  in  favor  of  mechanics 
and  materialmen,  so  as  to  have  such  lien  attach  to  the  surplus 
moneys,  see  Crombie  v.  Rosenstock,  19  Abb.  N.  C.  312. 

All  surplus  moneys  arising  from  the  sale  of  real  property  under 
foreclosure  must  be  paid  into  court  for  the  use  of  the  persons 
entitled  and  the  subsequent  practice  with  respect  to  their  dispo- 
sition is  regulated  by  Rules  61  to  64.  Where  it  was  sought  to 
have  the  claim  of  a  second  mortgagee  asking  for  surplus,  reduced 
by  the  amount  of  an  uncollected  policy  of  insurance  on  buildings 
on  premises,  on  the  ground  that  failure  to  collect  said  policy 
resulted  because  the  mortgagee  had  not  filed  due  proof  of  loss,  it 
was  helei,  that  the  determination  of  the  referee  was  res  adjudicata 
as  to  the  amount  to  be  collected  upon  the  mortgage,  and  the 
question  was  not  open  for  further  litigation.  McRobcrts  v.  Pooley, 
12  Civ.  Pro.  R.  139. 

Surplus  proceedings  will  not  be  delayed  to  await  the  determi- 
nation of  a  pending  action  to  set  aside  the  deed  on  the  ground  of 
fraud,  where  all  questions  as  to  the  fraudulent  character  of  the 
conveyance  can  be  tried  in  such  proceeding.  Wolfers  v.  Duffield, 
72  Hun,  637,  55  St.  Rep.  485,  25  Supp.  374.  In  distribution  of 
surplus  moneys,  judgments  over  ten  years  old  are  not  a  lien  and 
must  be  excluded.  Floyd  v.  Clark,  16  Daly,  528,  17  Supp.  848. 
The  party  having  the  first  lien  upon  the  fund  cannot  be  deprived 
thereof  on  the  application  of  subsequent  claimants  upon  the 
ground  that  his  lien  extends  to  other  property  which  is  sufficient 
to  satisfy  his  entire  claim.  The  right  to  have  securities  mar- 
shaled  in  such  case  cannot  be  enforced  in  the  surplus  money  pro- 


FORECLOSURE.  4^1 


Art.  II.     Surplus  Proceedings. 


ceedings  to  one  in  an  action  where  all  the  parties  and  the  entire 
funds  are  before  the  court.  Qiiackenbush  y .  O' Hare,  129  N.  Y. 
485,  42  St.  Rep.  104,  affirming  61  Hun,  388,  40  St.  Rep.  797, 
16  Supp.  33. 

Where  no  issue  has  been  raised  in  the  pleadings  and  by  the 
proceedings  in  foreclosure  as  to  the  equities  of  subsequent  incum- 
brances, they  are  not  to  be  determined  by  a  decree  of  foreclosure 
and  sale,  and  if  there  is  a  surplus  after  the  sale  they  may  be 
adjusted  in  that  proceeding.  Burchellv.  Osborne,  119  N.  Y.  486, 
affirming  26  St.  Rep.  163,  6  Supp.  863. 

After  an  interlocutory  judgment  had  been  entered  declaring  a 
deed  to  be  a  mortgage  and  an  accounting  ordered,  the  plaintiff 
died  and  the  action  was  not  revived,  held,  that  it  was  not  a  bar  to 
proceedings  to  distribute  the  surplus  money  in  an  action  after- 
ward brought  to  foreclose  a  prior  mortgage  and  that  the  referee 
therein  could  determine  the  claims  of  all  parties  to  the  surplus. 
Baker  v.  Baker,  70  Hun,  95,  53  St.  Rep.  442,  23  Supp.  1083. 

Where  a  party  claiming  surplus  moneys  was  also  interested  in 
an  action  of  ejectment  relative  to  the  mortgaged  premises  and  he 
had  been  a  party  to  the  foreclosure,  it  was  held  the  claim  on 
which  the  ejectment  suit  was  founded  was  cut  off  by  a  decree, 
and  whatever  rights  he  had  must  be  pursued  in  the  proceedings 
concerning  the  distribution,  and  that  where  surplus  moneys  were 
paid  to  the  surrogate  under  §§  2797  and  2798  without  objection, 
the  jurisdiction  of  the  surrogate  could  not  be  questioned  in  a  sub- 
sequent proceeding  before  him.  Matter  of  Stilwell,  68  Hun,  407, 
52  St.  Rep.  689,  22  Supp.  65,  54  St.  Rep.  491,  Matter  of  Equit- 
able Relief  Fund  Life  Assn.  131  N.  Y.  377. 

A  simple  contract  creditor  has  no  lien  upon  the  funds.  Dela- 
field  V.  Wliite,  19  Abb.  N.  C.  104.  But  it  is  said  that  general 
legal  liens  of  judgment  creditors  cannot  in  equity  prevail  against 
prior  equitable  claims  upon  the  mortgaged  premises.  Siveet  v. 
Jacocks,  6  Paige,  355;  Arnold  v.  Patrick,  6  Paige,  310;  JV/iite  v. 
Carpenter,  2  Paige,  217. 

The  inchoate  rights  of  mechanics  and  materialmen  seem  to  be 
regarded  as  in  the  nature  of  liens.  Livingston  v.  Mildrum,  19 
N.  Y.  440.  This  rule  does  not  apply  to  distribution  of  surplus 
of  a  deceased  mortgagor,  which  should  be  distributed  ratably 
among  the  general  and  judgment  creditors  of  the  deceased  owner 
according  to  law.     Loucks  v.  Van  Allen,    11    Abb.  (N.    S.)  427; 


462 


FORECLOSURE. 


Art.  II.     Surplus  Proceedings. 


White  V.  Poilloii,  25  Hun,  69;  German  Savings  Bank  v.  Sharer, 
25  Hun,  409.  The  owner  of  a  lien  who  is  not  a  party  to  the  suit 
and  who  is  not  cut  off  by  a  foreclosure  cannot  claim  the  sur- 
plus. Winslo2v  V.  MeCall,  32  Barb.  241  ;  Bache  v.  Doseher,  67 
N.   Y.  429;  Emigrant  Industrial  Savings  Bank  v.  Goldman,  75 

N.  Y.  127. 

Prior  lienors  have  no  claim  upon  the  surplus.  De  Ruyter  v. 
St.  Peter  s  ChiircJi,  2  Barb.  Ch.  555.  And  on  such  reference  the 
court  will  adjust  equities  between  subsequent  lienors  whenever 
they  can  be  established.  Oppenheimer  v.  Walker,  3  Hun,  30; 
James  v.  Hubbard,  i  Paige  Ch.  228;  Synder  v.  Stafford,  i  Paige 
Ch.  71  ;  Nezv  York  Life  Ins.  &  Trust  Co.  v.  Vanderbilt,  12  Abb. 
Pr.  458;  Savings  Bank  of  Utica  v.  Wood,  17  Hun,  133,  and  all 
incumbrances  inferior  to  the  mortgage  must  be  paid  in  the  order 
of  time  in  which  they  became  liens.  Haines  v.  Beaeh,  3  Johns. 
Ch.  459;  Savings  Bank  of  Utieav.  Wood,  17  Hun,  133.  And  to 
enable  a  creditor  to  enforce  his  claim  to  surplus,  he  must  establish 
a  lien  on  the  mortgaged  premises.  The  surplus  moneys  take  the 
place  of  the  land.  Clarkson  v.  Skidmore,  46  N.  Y.  297 ;  Liv- 
ingston    v.  Mildrum,    19   N.   Y.  440;    Elmendorf  v.   Lockwood,  4 

Lans.  393. 

All  surplus  money  arising  from  the  proceeds  of  a  mortgage  fore- 
closure sale  must  be  paid  into  court  and  its  subsequent  distribution 
is  regulated  bv  the  rules  of  the  court.  Raht  v.  Attrill,  106  N.  Y. 
423.  In  certain  cases,  however,  under  §  2798,  where  moneys  have 
been  realized  from  sale  in  foreclosure  of  a  mortgage  executed  by 
a  decedent,  and  letters  testamentary  or  of  administration  upon 
the  decedent's  estate  Avere  within  four  years  before  the  sale  issued 
from  the  Surrogate's  Court,  surplus  money  must  be  paid  into 
such  court.  All  liens  upon  or  interests  in  the  mortgaged  premises, 
which  are  inferior  to  the  mortgage  foreclosed,  are  transferred  to 
the  surplus,  and  all  persons  owning  such  liens  or  interests  are 
entitled  to  participate  in  its  distribution  and  an  order  of  refer- 
ence may  be  made  to  ascertain  the  way  in  which  the  liens  must 
be  paid.  Averill  v.  Loucks,  6  Barb.  470;  Blydenburg  v.  North- 
rup,   13    How.  289;    Mut.  Life  Ins.   Co.   v.    Truchnicht,  3   Abb. 

N.  C.  135. 


FORECLOSURE. 


463 


Art.  II.     Surplus  Proceedings. 


Precedent  for  Notice  of  Claim  to  Surplus. 

SUPREME  COURT. 


MUTUAL  LIFE  INSURANCE  COMPANY, 

Plaintiff, 

agsL 
THOMAS  H.  ANTHONY, Impleaded,  etal. 


^    105  N.  Y.  57. 


Take  notice  that  the  undersigned  is  entitled  to  the  surplus  or  a 
part  thereof  arising  on  the  sale  made  in  this  action  on  the  5th  day 
of  April,  1883,  as  follows: 

The  undersigned  recovered  a  judgment  in  this  court  against  the 
said  Thomas  H.  Anthony  on  the  28th  day  of  December,  1882,  and 
while  he  was  the  owner  of  the  equity  of  redemption  in  the  premises 
described  in  the  judgment  in  this  action  for  $3,360  damages,  and 
$18.21  costs,  which  was  duly  docketed  in  Jefferson  County  Clerk's 
office  on  that  day,  that  being  prior  to  the  commencement  of  this 
action,  and  the  said  premises  being  situated  in  said  county,  and  said 
claimant  is  still  the  owner  and  holder  of  said  judgment  which 
remains  wholly  unpaid,  and  there  is  now  due  and  owing  thereon  the 
full  amount  of  damages  and  costs  with  interest  from  December  28th, 
1882,  and  the  undersigned  thereby  acquired  a  lien  on  said  mortgaged 
premises  for  the  amount  of  said  judgment  and  interest,  which 
attaches  to  such  surplus,  after  the  plaintiff's  mortgage  and  such 
other  claims  and  liens  as  may  be  duly  ascertained  to  be  prior  thereto 
pursuant  to  the  course  and  practice  of  this  court. 

Dated  April  nth,  1883. 

H.  C.  ANTHONY, 
DORWIN  &  BROWN, 

To  F.  Waddingham,  Clerk.  Claimant's  Attorneys 

Precedent  for  Order  of  Reference  as  to  Surplus. 

At  a  Special  Term  of  the  Supreme  Court  held  at  the  court  house  in 
the  city  of  Syracuse,  in  the  county  of  Onondaga,  on  the  first 
day  of  May,  1883. 

Present  — Hon.  M.  H.  Merwin,  Justice. 


MUTUAL  LIFE  INSURANCE  COMPANY 
OF  NEW  YORK 


agst. 


THOMAS  H.  ANTHONY  and  Others. 


►   105  N.  Y.  57. 


The  sheriff's  report  of  sale  having  been  filed  in  this  action  and  the 
same  having  been  confirmed,  from  which  it  appears  that  there  is  a 


464  FORECLOSURE. 


Art.  II.    Surplus  Proceedings. 


surplus  into  court  arising  from  said  sale,  on  reading  and  filing  affi- 
davit of  John  Lansing,  and  notice  of  claim  of  the  National  Bank  & 
Loan  Company  of  Watertown,  to  such  surplus  money  or  some  por- 
tion of  it  by  virtue  of  a  lien  thereon  under  several  judgments 
recovered  in  this  court  against  the  said  defendant  Thomas  H.  An- 
thony, while  he  was  the  owner  of  the  equity  of  redemption  and  also 
as  the  owner  of  the  equity  of  redemption  by  virtue  of  a  deed  from 
the  said  Thomas  H.  Anthony  to  the  said  National  Bank  &  Loan 
Company  of  Watertown,  the  certificate  of  the  county  treasurer  show- 
ing amount  of  surplus  moneys  in  his  hands,  and  notice  of  motion  for 
the  appointment  of  a  referee  with  due  proof  of  service  of  the  same 
on  the  defendants  who  have  appeared  in  this  action,  and  those  par- 
ties who  have  filed  claims  for  said  surplus  money, 

Now,  on  motion  of  C.  L.  Adams,  of  counsel  for  the  said  National 
Bank  &  Loan  Company  of  Watertown,  on  consent  of  Dorwin  & 
Brown,  attorneys  for  claimants  H.  C.  Anthony  and  Paul  W. 
Anthony,  ordered,  that  it  be  referred  to  Charles  D.  Adams,  of  the 
city  of  Utica,  N,  Y.,  as  referee  to  ascertain  and  report  the  amount 
due  the  said  National  Bank  &  Loan  Company  of  Watertown,  or  to 
any  other  person,  which  is  a  lien  upon  such  surplus  money,  and  to 
ascertain  the  priorities  of  the  several  liens  thereon,  and  it  is  further 
ordered,  that  such  referee  summon  before  him  on  the  reference 
every  party  who  has  appeared  in  this  action  and  every  person  who 
has  delivered  written  notice  of  his  claim  to  such  surplus  moneys, 
and  that  he  cause  them  to  have  the  usual  notice  of  all  subsequent 
proceedings  and  report  thereon  with  all  convenient  speed. 

H.  HAREFORD, 

Deputy  Clerk, 

Report  of  Referee. 

(Title.) 

To  the  Supreme  Court  of  the  State  of  New  York : 

The  subscriber,  a  referee  in  the  above-entitled  action,  appointed 
under  and  by  virtue  of  an  order  made  and  entered  therein  on  the 
14th  day  of  May,  1888,  whereby  said  action  was  referred  to  me  to 
ascertain  and  report  the  amount  due  Johannis  Van  Buren,  who 
claimed  a  lien  upon  the  mortgaged  premises  sold  in  the  above 
action,  and  also  the  amount  due  any  other  person  having  sucn  a 
lien,  which  are  now  liens  upon  the  surplus  funds  ar'sing  upon  such 
sale,  and  also  to  ascertain  and  report  the  priority  of  such  liens  in 
their  order,  would  respectfully  report  as  follows:  That  the  certificate 
of  the  treasurer  of  Ulster  county,  the  county  in  which  the  mort- 
gaged premises  are  situated,  shows  that  there  is  in  his  hands,  to  the 
credit  of  this  action,  the  sum  of  $800,  the  amount  of  the  surplus 
money  on  the  sale  aforesaid,  as  paid  by  the  referee,  and  all  interest 
on  the  same,  which  certificate  is  hereto  annexed  as  schedule  A.; 
that  on  the  24th  day  of  J"ly,  1888,  I  was  attended  by  all  the  parties 
who  had  appeared  in  the  action,  or  who  had  filed  notice  of  claim 
upon  such  surplus  monevs.  nnr'^uant  to  notice  given  June  14,  1888, 
proof  of  service  of  which  said  notice  is  hereto  annexed  and  marked 


FORECLOSURE.  465 


Art.  II.     Surplus  Proceedings. 


schedule  B. ;  and  that  on  said  day  I  was  attended  by  WilUam  T. 
Holt,  attorney  for  claimant  Johannis  VanBuren,  and  by  Severyn  B. 
Sharpe,  who  appeared  for  claimant  Mary  Van  Dyne,  and  upon  such 
examination  I  took  the  evidence  and  proofs  offered  by  the  several 
parties,  which  same  are  hereto  annexed.  I  find  the  following  facts 
as  proven  herein,  viz:  That  the  claimant  Johannis  Van  Buren  is  the 
owner  of  a  certain  judgment,  in  the  sum  of  $300,  obtained  by  the 
said  Johannis  Van  Buren  against  the  said  Frank  L.  DeGraw,  July 
17,  1884,  and  docketed  the  same  day  in  Ulster  county  clerk's  oftice, 
and  on  which  there  is  now  due  the  sum  of  $300,  together  with  inter- 
est thereon  from  July  17,  1884;  that  the  claimant  Mary  Van  Dyne 
is  the  owner  of  a  certain  judgment  in  the  sum  of  $465,  obtained  by 
the  said  Mary  Van  Dyne  against  the  said  Frank  L.  DeGraw,  June 
20,  1885,  and  duly  docketed  in  Ulster  county  clerk's  office,  June  26, 
1885,  and  on  which  there  is  now  due  the  sum  of  $465,  and  interest 
from  June  20,  1885.  From  the  facts  above  stated,  I  find  and  report 
that  the  amount  of  the  surplus  funds  herein  which  shall  remain  after 
the  payment  of  the  costs  and  disbursements  of  this  proceeding,  as 
far  as  the  same  shall  extend,  should  be  distributed  as  follows: 

First.  To  Johannis  Van  Buren,  in  payment  of  the  judgment  above 
mentioned,  and  interest  from  July  17,  1884,  upon  his  canceling  said 
judgment  of  record. 

Second.  To  Mary  Van  Dyne,  in  payment  of  the  judgment  above 
named,  and  interest  from  June  20,  1885,  upon  her  satisfying  said 
judgment. 

All  of  which  is  respectfully  submitted. 

Dated  August  i,  1888.  A.  W.   COOPER, 

Referee. 

Notice  of  Motion  to  Confirm  Report. 

(Title.) 

Take  notice  that  the  referee's  report  as  to  the  surplus  moneys  in 
this  cause,  with  a  copy  of  which  you  have  heretofore  been  served, 
will  be  presented  to  this  court  at  a  Special  Term  thereof,  to  be  held 
at  the  court  house  in  Kingston  city,  Ulster  county,  New  York,  on 
the  15th  day  of  August,  1888,  at  the  opening  of  the  court  on  that 
day,  or  as  soon  thereafter  as  counsel  can  be  heard,  and  a  motion  will 
then  and  there  be  made  for  an  order  confirming  said  report,  and  that 
the  treasurer  of  the  county  of  Ulster  pay  to  the  defendant  Johannis 
Van  Buren  the  sum  of  $300,  and  interest  thereon  from  July  17,  1884, 
and  for  such  other  or  further  relief  as  may  be  just,  with  costs. 

Dated  August  5,  1888.  (Signature.) 

To 

Order  of  Confirmation. 

(Caption,  usual  form.) 

(Title.) 

On  reading  and  filing  the  report  of  the  referee  herein,  duly 
appointed,  by  order  of  this  court,  to  take  proof  of  the  liens  of  the 

[Special  Actions  —  30.] 


466  FORECLOSURE. 


Art.  II.     Surplus  Proceedings. 


various  claimants  to  tiie  surplus  funds  in  the  foreclosure  proceedings 
above  entitled,  and  upon  due  proof  that  all  of  the  parties  having 
claims  to  said  moneys  have  been  brought  into  court,  and  after  hear- 
ing William  T.  Holt,  attorney  for  Johannis  Van  Buren,  Severyn  B. 
Sharpe,  attorney  for  the  claimant  Mary  Van  Dyne,  and  on  the  cer- 
tificate of  the  county  treasurer,  by  which  it  appears  that  there  is  in 
his  hands  the  sum  of  $800  to  the  credit  of  this  action,  it  is  ordered. 

First.  That  the  report  of  the  said  referee  be  and  the  same  is 
hereby  in  all  things  confirmed. 

Second.  That  the  county  treasurer  pay  first  to  William  T.  Holt 
and  to  Severyn  B.  Sharpe  each  the  sum  of  $20  as  costs  of  this  pro- 
ceeding. 

Third.  That  he  pay  to  A.  W.  Cooper  the  sum  of  $15,  being  his 
fees  as  referee  herein. 

Fourth.  That  he  pay  to  Johannis  Van  Buren  the  sum  of  $300  and 
interest  from  July  17,  1884. 

Fifth.  That  he  pay  to  Mary  Van  Dyne  the  balance  on  her  judg- 
ment for  $465. 

A.   B.   PARKER, 

J.   S.   C. 

Sub.  3.    Costs   and   Appeal   from  Order  in   Surplus  Pro- 
ceedings. 

On  application  for  surplus  in  foreclosure  no  costs  can  be  allowed 
except  motion  fees  and  the  fees  of  the  referee ;  the  hearing  before 
the  referee  is  not  a  trial,  and  no  extra  allowance  can  be  made. 
McDermott  \.  Hoincssy,  9  Hun,  59;  Wellington  v.  Ulster  Co.  lee 
Co.  5  Week.  Dig.  104;  Matter  of  Gibbs,  58  How.  502;  Barley  v. 
Alleond,  8  Daly,  126;  Gcruian  Savings  Bank  v.  Sharer,  25  Hun, 
409;  Ekvell  V.  Robbins,  43  How.  108;  Dudgeon  v.  Smith,  23 
Week.  Dig.  400.      Where  the  surplus  is  small,  and  unsuccessful  - 

claimants  have  caused  unnecessary  expense,  they  may  be  charged         1 
with  costs.      Bevier  v.   Sclwonuiaker,   29   How.   41 1;    Latvton  v. 
Sager,  1 1  Barb.  349.      One  litigating  in  good  faith  will  not  be  so 
charged.     Norton  v.  Whitings  i    Paige,    578;  Farmers    Loan  and 
Trtist  Co.  V.  Millard,  9  Paige,  620. 

Where  there  are  surplus  moneys  in  hands  of  mortgagee,  arising 
from  a  statutory  foreclosure,  and  two  actions  have  been  brought 
by  judgment  creditors  of  the  mortgagor  to  obtain  such  surplus, 
and  a  reference  has  been  ordered  and  neither  party  appeals,  it 
will  be  treated  as  a  reference  under  the  rule.  Kirby  v.  Fitzger- 
ald, 31  N.  Y.  417.  Where  an  order  of  the  General  Term,  revers- 
ing an  order  of  the  Special  Term,  which  directed  as  to  the  dis- 
position of  surplus  moneys  in  a  foreclosure  suit  and  sending  back 


FORECLOSURE.  467 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 

the  case  to  a  referee,  imposes  costs  absolutely,  in  this  respect  it 
is  a  final  decision  and  an  appeal  can  be  taken  to  the  Court  of 
Appeals.  Bergen  v.  Carman,  79  N.  Y.  146.  An  order  of  the 
General  Term  reversing  an  order  of  the  Special  Term  which 
confirmed  the  report  of  a  referee  appointed  to  determine  as  to 
conflicting  claims  to  surplus  money  arising  on  a  foreclosure  sale 
and  ordering  a  new  hearing  before  a  referee,  is  not  reviewable  in 
Court  of  Appeals.  If  the  inquiry  is  considered  as  a  special  pro- 
ceeding under  the  Code,  then  the  order  of  the  General  Term  is 
not  final  and  so  not  reviewable.  If  it  be  regarded  as  an  inquiry 
made  for  the  information  of  the  court,  then  the  order  is  not 
appealable,  both  becau.se  it  is  not  final  and  is  discretionary. 
Mutual  Life  Ins.  Co.  v.  Ant]iony^  105  N.  Y.  57.  The  remedy  of 
a  party  aggrieved  is  by  appeal.  McRoberts  v.  Poolcy,  12  Civ, 
Pro.  R.  139. 

ARTICLE    XII. 

Precedents   for    Foreclosure  of  Mortgage   Given    to 

Secure  Bonds. 

The  increased  number  of  mortgages  given  to  secure  bonds  and 
the  very  considerable  amounts  involved,  as  well  as  the  frequent 
foreclosures,  render  it  desirable  that  the  practitioner  should  have 
at  hand  precedents  for  this  class  of  cases.  The  formal  papers, 
such  as  notice  of  pendency,  affidavits  of  regularity,  order  of  refer- 
ence to  compute  amount  due  and  take  proof  of  facts  and  circum- 
stances, are  omitted.  As  the  evidence  and  report  of  referee 
differ  from  the  ordinary  form  they  are  given.  The  report  of  sale 
is  omitted  as  it  is  in  the  usual  form,  while  the  order  of  reference 
based  upon  that  report  is  given,  since  it  provides  for  the  taking 
of  evidence  as  to  ownership  of  the  bonds  followed  by  notice  to 
bondholders  to  prove  ownership.  Affidavit  of  service  of  such 
notice  should  be  attached  to  report.  This  is  followed  by  the 
order  for  distribution  and  report  of  referee  that  such  di.stribution 
has  been  made.  A  formal  order  should  be  obtained  confirming 
such  report. 


468  FORECLOSURE. 


Art.  12.      Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 


i 


Precedent  for  Complaint. 

SUPREME  COURT  — Ulster  County. 


CHARLES  A.  SPALDING,  as  Trustee  for 
THE  Benefit  of  the  Holders  of  the  Bonds 
Secured  by  a  Mortgage  or  Deed  of  Trust 
Executed  by  the  Sheffield  Manufactur- 
ing Company,  Plaintiff, 

agst. 

SHEFFIELD    MANUFACTURING    COM- 
PANY, Defendant. 

The  plaintiff,  on  behalf  of  all  the  holders  of  the  bonds  secured  by  a 
certain  mortgage  hereinafter  mentioned,  complains  and  avers: 

First.  That  the  defendant,  the  Sheffield  Manufacturing  Company, 
now  is  and  was  at  all  the  times  hereinafter  named  a  domestic  corpora- 
tion, duly  organized  and  incorporated  under  and  by  virtue  of  the 
laws  of  the  State  of  New  York,  and  especially  under  the  provisions 
of  chapter  193  of  the  Laws  of  New  York,  passed  April  6th,  1890. 

Second.  That  upon  the  30th  day  of  August,  in  the  year  1890,  the 
said  Sheffield  Manufacturing  Company  was  duly  indebted  in  the  sum 
of  four  hundred  and  fifty  thousand  ($45o,ooo)dollars,  by  reason 
of  debts  contracted  and  obligations  assumed  by  it  in  the  business  for 
which  it  was  incorporated,  and  under  and  pursuant  to  its  plan  and 
agreement  of  incorporation  aforesaid,  and  the  statute  hereinbefore 
referred  to,  under  which  it  was  incorporated,  and  that  for  the  pur- 
pose of  securing  the  payment  of  the  said  debt  and  obligations  so 
contracted  by  it,  the  said  Sheffield  Manufacturing  Company  duly 
determined  and  resolved  to,  and  it  did  issue  its  bonds  in  denomina- 
tions of  fifty  (50),  one  hundred  (100),  five  hundred  (500),  and  one 
thousand  (1,000),  dollars, with  interest  coupons  thereto  attached,  in  all 
not  exceeding  the  sum  of  four  hundred  and  fifty  thousand  dollars ;  that 
each  of  said  bonds  were  in  words  and  figures  following,  subject  only  to 
necessary  variations  as  to  distinguishing  numbers  thereof,  as  follows: 

(Here  insert  copy  bond.) 

Plaintiff  further,  on  information  and  belief,  avers  that  thereafter 
and  on  or  about  the  30th  day  of  August,  1890,  the  said  the  Shelifield 
Manufacturing  Company  duly  made  and  caused  to  be  executed  by  its 
officers,  and  authenticated  by  plaintiff  as  trustee,  its  several  bonds  in 
denominations  as  above  set  forth,  amounting  in  the  aggregate  to  the 
principal  sum  of  $450,000;  all  of  the  said  bonds  being  in  the  words 
and  figures  of  the  bond  hereinbefore  set  forth;  subject  only  to  the 
necessary  variations  as  to  the  distinguishing  amounts  and  numbers 
thereof.  That  said  bonds  were  duly  issued  and  delivered  to  various 
persons  and  corporations  for  value,  and  are  outstanding  obligations 
held  by  various  persons  and  corporations  to  plaintiff  unknown,  in 
the  sum  and  amount  of  $450,000. 


FORECLOSURE.  469 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 

Third.  That  to  secure  the  payment  of  the  said  bonds,  with  the 
interest  thereon,  the  said  Sheffield  Manufacturing  Company  did  duly, 
and  in  accordance  with  its  articles  of  incorporation,  and  having  been 
thereunto  duly  authorized,  made  and  caused  to  be  executed  by  its 
officers  and  delivered  to  this  plaintiff,  its  certain  mortgage  or  deed 
of  trust,  bearing  date  the  said  30th  day  of  August,  in  the  year  1890, 
wherein  and  whereby  it  duly  granted,  bargained,  sold,  assigned,  and 
conveyed  to  the  plaintiff  herein  and  to  his  successor,  successors  and 
assigns  forever,  in  trust,  all  the  right,  title  and  interest  of  the  said 
Sheffield  Manufacturing  Company  in  and  to  its  charter  and  its  cor- 
porate powers,  rights,  privileges  and  franchises,  together  with  certain 
lands  and  premises  situated,  lying  and  being  on  the  south  side  of 
Esopus  creek,  in  the  village  of  Saugerties,  town  of  Saugerties,  Ulster 
county.  New  York,  together  with  all  the  factories,  dwellings,  build- 
ings, store-houses,  machine  shops,  docks  and  wharves  thereon; 
also  the  right  to  use  the  waters  of  the  said  creek  for  all  the 
purposes  of  power  used  in  manufacturing,  milling  and  other  pur- 
poses, which  were  in  the  mortgage  or  deed  of  trust  herein  referred 
to,  more  specifically  set  forth  and  described;  also  all  boilers, 
engines,  fixtures,  machinery,  mill  gearing,  shafting,  pulleys,  belts 
and  appurtenances,  either  then  or  theretofore  in  use,  to  drive  ma- 
chines, either  fixed  or  movable;  all  movable  machines,  all  calenders, 
rolls,  ruling  machines,  tables  and  shelving,  all  tools  and  implements, 
including  the  tools  and  machines  in  the  machine,  pipe  and  carpenter 
shops;  all  printing  and  cutting  presses,  type,  stereotype  plates,  cast- 
ings, machinery,  tools,  tables,  cases  and  furniture  connected  with 
printing;  all  paper  box  machinery  and  tools;  all  envelope  machines, 
machinery,  tools  for  the  manufacture  of  envelopes;  all  machinery, 
tool  and  fixtures  for  the  manufacture  of  blank  books;  all  office  fur- 
niture; also  all  boilers,  engines,  machinery,  tools  and  fixtures  which 
might  thereafter  be  acquired  for  use  in  the  manufacturing  business 
carried  on  by  the  said  Sheffield  Manufacturing  Company. 

That  the  said  mortgage  duly  covered  and  affected,  and  there  was 
duly  described  therein,  in  addition  to  the  property  hereinbefore 
referred  to,  certain  real  estate  and  appurtenances,  with  water  and 
other  rights,  all  of  which  were  owned  and  possessed  by  said  the 
Sheffield  Manufacturing  Company.  That  all  of  its  real  estate,  appur- 
tenances, water  rights  and  property,  other  than  its  personal  property 
and  franchises,  were  covered  and  affected  by  other  mortgages  prior 
in  lien  to  the  mortgage  in  this  complaint  referred  to,  and  as  plaintiff, 
on  information  and  belief,  avers,  such  proceedings  have  been  had 
under  said  prior  mortgages  and  otherwise,  that  the  said  defendant, 
the  Sheffield  Manufacturing  Company,  now  has,  owns  and  possesses 
no  property  subject  to  the  mortgage  herein  referred  to,  excepting 
the  personal  property,  together  with  its  franchises  hereinabove 
referred  to. 

Fourth.  That  the  said  mortgage  or  deed  of  trust  contained  the 
following  trusts,  covenants  and  conditions,  that  is  to  say:  That  the 
property,  rights,  privileges  and  franchises  were  conveyed  to  this 
plaintiff  as  trustee,  nevertheless  for  the  equal  and  pro  rata  benefit 
and  security  of  the  several  persons  or  corporations,  who  and  which 


470 


FORECLOSURE. 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 

might  be  or  become  the  holder  of  any  of  the  bonds  thereby  secured, 
and  further  upon  the  following  express  conditions,  in  said  mortgage, 
and  especially  in  article  2  thereof  contained,  and  set  forth: 

If  coupons  for  the  payment  of  semi-annual  interest  on  the  bonds 
are  presented  for  payment  at  the  place  where  they  are  payable  when 
due,  or  at  any  time  when  they  are  due,  and  payment  of  the  coupons 
so  presented  shall  be  refused  and  neglected  for  a  period  of  six  months 
thereafter  at  the  place  where  they  are  payable,  then,  at  the  option  of 
the  party  of  the  second  part  hereto  (of  this  plaintiff),  his  successor 
or  successors,  the  whole  of  the  principal  of  the  bonds  hereby  secured, 
and  the  accrued  interest  shall  become  immediately  due,  payable  and 
collectible,  anything  in  the  said  bonds  or  herein  to  the  contrary  not- 
withstanding. 

And  the  said  party  of  the  second  part  hereto  (the  plaintiff'),  his 
successor  or  successors,  may  thereupon  immediately  proceed  and 
cause  the  said  premises  to  be  subjected  to  the  payment  of  the  said 
debt  in  the  manner  hereinafter  provided. 

And  the  said  mortgage  further  provided  that  in  case  default  should 
be  made  in  payment  of  the  coupons  attached  to  the  said  bond,  or 
any  of  them  when  due,  and  payment  refused  or  neglected  for  six 
months  after  demand  of  payment  duly  made,  that  it  should  be  lawful 
for  the  plaintiff,  its  successor  and  successors,  to  foreclose  the  said 
mortgage  and  to  sell  or  procure  the  property  to  be  sold  and  the 
moneys  received  from  such  sale,  after  deducting  all  costs  and  expenses 
appertaining  thereto,  including  taxes,  assessments,  insurance  and 
repairs  as  well  as  a  just  compensation  to  this  plaintiff  and  his  attor- 
neys for  his  and  their  services,  to  apply  the  balance,  or  so  much 
thereof  as  may  be  necessary,  of  the  proceeds  of  the  said  sale  to  the 
payment  of  the  coupons  and  interest  then  due  and  the  principal  of 
said  bonds,  but  if  said  moneys  should  be  insufficient  to  make  such 
payment  in  full,  then  to  pay  the  same  ratably  and  proportionately 
to  the  respective  owners  or  holders  of  said  coupons  and  bonds,  and 
if  any  balance  remained,  then  to  pay  the  same  over  to  the  Sheffield 
Manufacturing  Company,  or  to  whomsoever  shall  be  equitably  or 
lawfully  entitled  to  the  same  or  as  some  court  of  competent  juris- 
diction shall  direct. 

And  it  was  in  and  by  said  mortgage  further  provided,  that  if  the 
sale  thereunder  was  made,  pursuant  to  the  judgment  or  decree  of 
any  court  in  an  action  for  the  foreclosure  thereof,  the  sale  to  be 
made  in  such  manner  and  upon  such  terms  as  the  court  may  in  its 
discretion  adjudge  in  and  by  said  judgment. 

Fifth.  And  it  was  in  and  by  the  said  mortgage  duly  covenanted  on 
the  part  of  the  defendant,  the  Sheffield  Manufacturing  Company,  that 
it  would  well  and  truly  pay  or  cause  to  be  paid  to  the  respective  hold- 
ers of  coupons  and  bonds,  the  principal  of  each  of  the  said  bonds 
secured  thereby,  together  with  interest  thereon  as  the  same  should, 
from  time  to  time,  become  due  and  payable,  according  to  the  tenor 
of  said  bonds  and  the  coupons  accompanying  the  said  bonds 
respectively. 

Sixth.  It  was  further  in  and  by  said  mortgage  provided,  that  the 
said  mortgagor,  the  Sheffield  Manufacturing  Company,  should  have 


FORECLOSURE.  471 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 


the  right,  from  time  to  time,  in  its  discretion,  to  dispose  of  such 
portion  or  portions  of  its  mill,  boilers,  engines,  tools,  implements, 
furniture  and  fixtures  at  any  time  held  or  acquired  for  use  in  its 
manufacturing  business  as  may  become  unfit  for  use,  replacing  the 
same  by  new,  more  suitable  and  improved  machinery  which  shall 
then  become  subject  to  the  operation  of  said  mortgage;  plaintiff, 
upon  information  and  belief,  alleges  that  since  the  making  of  said 
mortgage,  and  pursuant  to  the  clause  above  referred  to,  the  Sheffield 
Manufacturing  Company  has  disposed  of  certain  of  said  property, 
replacing  the  same  by  new,  more  suitable  and  improved  machinery, 
and  that  the  same  and  all  of  its  present  owned  machinery,  tools  and 
fixtures  are  covered  and  affected  by  the  said  mortgage. 

Seventh.  That  plaintiff  duly  accepted  the  trust  created  in  and  by 
the  said  deed  of  trust,  and  the  said  deed  of  trust  or  mortgage,  to- 
gether with  the  acceptance  thereof,  was  duly  recorded  in  the  office  of 
the  cleric  of  the  county  of  Ulster,  on  the  30th  day  of  August,  in  the 
year  1890,  in  Book  No.  204,  page  25. 

Eighth.  That  on  the  first  day  of  August,  in  the  year  1894,  the 
interest  warrants  or  coupons  due  upon  the  bonds  aforesaid,  and 
referred  to  in  said  mortgage,  were  duly  presented  to  the  defendant 
for  payment,  and  payment  then  and  there  demanded,  which  was 
refused. 

That  the  same  have  remained  unpaid  for  a  period  of  six  months 
thereafter  and  after  the  said  demands. 

That  the  plaintiff  has  and  does  elect  that  the  whole  sum  owing 
under  and  upon  the  said  bonds,  and  secured  by  the  said  mortgage 
or  deed  of  trust,  be  and  become  due  and  payable  forthwith,  and  that 
thereby  and  by  the  provisions  of  the  said  bond  and  mortgage  the 
whole  principal  thereof  became  due  and  payable  before  the  com- 
mencement of  this  action;  and  that  the  defendant,  the  Sheffield 
Manufacturing  Company,  has  failed  to  comply  with  the  terms  and 
provisions  of  the  said  bonds  and  mortgage  by  neglecting  to  pay  the 
interest  coupons  or  warrants  due  as  aforesaid,  and  the  principal  sum 
and  amount  due  on  the  mortgage  aforesaid. 

Ninth.  That  there  is  due  and  owing  on  the  said  bonds  and  mort- 
gage to  the  various  persons  and  (Corporations  owning,  holding  and 
representing  the  same  the  sum  of  $450,000  of  principal,  together 
with  the  interest  thereon  from  the  ist  day  of  February,  1894,  no 
part  of  which  has  been  paid . 

Tenth.  Plaintiff  further  shows  that  no  proceedings  have  been  had 
at  law  or  otherwise,  and  that  no  other  action  has  been  brought  for 
the  recovery  of  said  sums  required  to  be  paid  in  and  by  said  bonds, 
and  secured  to  be  paid  by  the  said  mortgage  or  deed  of  trust  hereto- 
fore set  forth,  or  any  part  thereof. 

Wherefore,  the  plaintiff  demands  judgment  against  the  defendant: 

First.  That  the  defendant  in  this  action  and  all  persons  and  parties 
claiming  or  to  claim  under  it,  subsequent  to  the  commencement  of 
this  action  and  the  filing  of  the  notice  of  the  pendency  of  this  action, 
may  be  barred  and  foreclosed  of  and  from  all  right,  title,  claim,  lien, 
interest,  benefit  or  equity  of  redemption  in  or  to  the  said  mortgage 
property,  or  any  part  thereof. 


472 


FORECLOSURE. 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 


Second.  That  a  referee  be  appointed  to  take  all  pro  fs  and  ac- 
countings herein,  and  to  find  and  report  such  facts  as  to  the  owners, 
holders  and  representatives  of  said  bonds  and  coupons,  together 
with  the  amounts  due,  owing  or  unpaid  thereon,  and  such  other  facts 
as  may  be  necessary. 

Third.  That  the  said  mortgaged  property  covered  by  and  described 
in  said  mortgage  or  deed  of  trust,  may  be  adjudged  and  decreed  to 
be  sold  according  to  law  and  the  practice  of  this  court. 

That  the  moneys  to  be  derived  from  the  sale  be  disposed  of  in 
accordance  with  the  order  of  this  court;  that  out  of  the  moneys 
there  first  be  paid  all  taxes  or  assessments  which  are  or  may  be  a  lien 
upon  the  said  premises;  that  next  there  may  be  paid  the  costs,  allow- 
ances and  expenses  of  this  action,  and  the  costs  and  expenses  of  the 
sale  of  the  mortgaged  property  under  a  judgment  which  may  be  given 
in  this  action;  that  there  next  be  paid  the  fees,  commissions  and 
necessary  disbursements  of  the  plaintiff,  the  trustee,  and  the  receiver 
in  this  action,  if  one  should  be  appointed;  that  the  balance  of  the 
moneys  may  be  applied  to  the  payment  of  the  amounts  owing  to  the 
bondholders  of  the  bonds  and  coupons  which  are  attached  to  said 
bonds,  and  if  there  shall  not  be  sufficient  to  pay  them  in  full,  then 
that  they  may  be  paid  pro  rata  and  proportionately  as  far  as  the 
moneys  will  go;  and  if  there  shall  be  any  surplus  after  paying  said 
bonds,  coupons  and  interest  in  full,  then  that  such  surplus  be  paid 
over  to  the  defendant,  the  Sheffield  Manufacturing  Company,  or  to 
whomsoever  it  shall  equitably  and  lawfully  belong  as  may  be  directed 
by  this  court;  and  further  that  the  defendant,  the  Sheffield  Manu- 
facturing Company,  may  be  adjuged  to  pay  any  deficiency  which 
may  remain  after  applying  all  of  the  moneys  applicable  to  the  pay- 
ments aforesaid.  That  the  plaintiff  may  have  such  other  or  further 
relief  as  to  the  court  may  seem  proper  in  the  premises,  together 

with  the  costs  in  this  action. 

ROSENDALE  &  HESSBERG, 

Attorneys  for  Plaintiff. 

Precedent  for  Evidence  before  Referee. 

SUPREME  COURT  — Ulster  County. 


CHARLES  A.  SPALDING,  as  Trustee  for 
THE  Benefit  of  the  Holders  of  the  Bonds 
Secured  by  a  Mortgage  or  Deed  of  Trust 
Executed  by  the  Sheffield  Manufactur- 
ing Company, 

agst. 

SHEFFIELD     MANUFACTURING    COM- 
PANY. 


Hearing  before  Henry  A.  Peckham,  Esq., who  was  appointed  referee 
pursuant  to  an  order  made  at  Special  Term  of  the  Supreme  Court, 


FORECLOSURE.  473 

Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 

held   at  the  city  hall,  in   the   city  of  Albany,  on   the   29th  day  of 
March,   1895. 

Statutory  oath  taken  by  referee  and  hereto  annexed. 

Appearances : 

Rosendale  &  Hessberg,  attorneys  for  plaintiff. 

Howard  Gillespy,  being  duly  sworn,  testifies  as  follows:  I  reside 
in  the  village  of  Saugerties,  county  of  Ulster  and  State  of  New  York. 

I  have  kept  an  account  for  the  plaintiff  and  also  for  the  defendant 
of  all  of  the  bonds  issued  under  the  mortgage  set  forth  in  the  com- 
plaint herein. 

The  defendant  is  a  domestic  corporation  and  was  organized  and 
incorporated  under  the  provision  of  chapter  193  of  the  Laws  of  1890. 
The  defendant's  predecessor,  J.  B.  Sheffield  &  Son,  was  also  a  cor- 
poration and  was  found  to  be  insolvent  and  wound  up,  and  the  pres- 
ent corporation  was  formed  by  a  reorganization  committee  pursuant 
to  the  act  of  the  legislature  which  I  have  just  referred  to. 

(Mortgage  shown  witness.) 

This  mortgage,  dated  the  30th  day  of  August,  1890,  made  by  the 
Sheffield  Manufacturing  Company  to  Charles  A.  Spalding  as  trustee 
for  the  benefit  of  the  holders  of  the  bonds  secured  by  said  mortgage, 
was  executed  by  the  defendant,  and  the  bonds  provided  for  in  and 
by  the  terms  of  said  mortgage,  were  duly  issued  and  delivered  to 
various  persons  and  corporations  in  consideration  of  the  outstanding 
obligations  held  by  such  persons  and  corporations  of  said  corpora- 
tion known  as  J.  B.  Sheffield  &  Son. 

Mortgage  dated  August  30th,  1890,  and  recorded  in  the  Ulster 
county  clerk's  office  on  the  30th  day  of  August,  1890,  in  Book  204 
of  Mortgages  at  page  25,  offered  and  received  in  evidence,  and 
marked  exhibit  "  A." 

All  of  the  fixtures  and  property  described  in  the  complaint  herein 
are  in  the  factories,  building,  store-houses  and  shops  referred  to 
in  the  complaint,  with  the  exception  of  some  machines  which  have 
been  sold,  and  the  proceeds  of  such  sale,  however,  were  paid  over  to 
the  plaintiff  as  trustee  to  be  applied  towards  discharging  the  bonds 
issued  under  the  mortgage.  The  total  sum  so  paid  out  of  the  pro- 
ceeds of  said  sales  amount  to  five  thousand  six  hundred  and  six  -^^^ 
dollars. 

The  bonds  outstanding  are  as  follows: 

132  bonds  of  $50  each  amounting  to $6,  600 

319  bonds  of  $100  each  amounting  to .  31,  900 

47  bonds  of^$5oo  each  amounting  to 23,  500 

384  bonds  of  $1,000  each  amounting  to 384,  000 

Total   $446,  000 


Six  hundred  and  fifty  dollars  of  the  bonds  originally  issued  were 
surrendered  and  canceled   for  old  machinery  delivered,  and  $3,350 


474 


FORECLOSURE. 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 

of  said  bonds  were  surrendered  for  cancellation  by  the  owners,  they 
having  received  dividends  from  debtors  of  the  Sheffield  &  Son  cor- 
poration sufficient  to  pay  such  bonds,  said  bonds  having  been  issued 
to  them  conditionally  under  the  reorganization  plan.  Hence  only 
bonds  amounting  in  the  aggregate  to  $446,000  are  now  outstanding. 
The  coupons  or  interest  warrants  annexed  to  all  of  said  bonds  which 
became  due  on  the  ist  day  of  August,  1894,  are  in  default  and  were 
not  paid  when  they  became  due  and  still  remain  unpaid.  Payment 
was  duly  demanded  of  defendant  and  refused.  The  interest  war- 
rants or  coupons  remained  unpaid  for  six  months  after  they  became 
due.  Mr.  Spalding  thereupon  some  time  subsequent  to  February 
ist,  1895,  elected  that  the  whole  sum  owing  upon  and  under  said 
bonds,  and  secured  by  the  mortgage  described  in  the  complaint, 
should  be  deemed  due  and  payable. 

The  defendant  failed  to  pay  any  part  of  the  principal  so  falling 
due  under  the  plaintiff's  election,  and  the  only  payments  which  have 
been  made  upon  the  mortgage  are  those  above  stated,  being  the 
proceeds  of  the  sale  of  machinery,  which  was  not  required  by  the 
defendant. 

There  is  due  the  various  persons  and  corporations  owning  and 
holding  the  bonds  issued  as  aforesaid,  the  sum  of  four  hundred  and 
forty-six  thousand  dollars  ($446,000)  of  principal.  The  interest  due 
thereon  under  the  warrants  or  coupons  remaining  unpaid  from  the 
ist  day  of  February,  1894,  to  the  date  hereof,  at  five  per  cent 
amounts  to  $26,016.66,  making  the  total  sum  due  of  principal  and 
interest  $472,016.66. 

From  this  sum  should  be  deducted  the  payments  of  $5,606.25 
above  referred  to,  leaving  a  balance  due  of  $466,410.41. 

No  proceedings  having  been  had  at  law,  or  otherwise,  to  my  knowl- 
edge, and  no  action  has  been  brought  for  the  recovery  of  the  sums 
required  to  be  paid  in  and  by  the  bonds  secured  to  be  paid  by  the 
mortgage  or  deed  of  trust  referred  to  in  the  complaint. 

The  real  estate  covered  by  the  mortgage  referred  to  in  the  com- 
plaint, and  water  rights  and  property,  other  than  the  personal  prop- 
erty, were  covered  and  affected  by  other  mortgages  prior  in  lien  to 
the  mortgage  in  the  complaint  referred  to,  and  such  proceedings 
have  been  had  under  said  prior  mortgages  and  otherwise  that  the 
defendant  now  has,  owns  and  possesses  substantially  no  real  property 
subject  to  the  mortgage  referred  to  in  the  complaint. 

H.   GILLESPY. 
Read  over,  subscribed  and  sworn  to  be- 

for  me,  this  30th  day  of  March,    1895. 

H.  A.   PECKHAM, 

Referee. 


FORECLOSURE.  475 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 


Precedent  for  Report  of  Referee. 

SUPREME  COURT  — Ulster  County. 


CHARLES  A.  SPALDING,  as  Trustee  for 
THE  Benefit  of  the  Holders  of  the  Bonds 
Secured  by  a  Mortgage  or  Deed  of  Trust 
Executed  by  the  Sheffield  Manufac- 
turing Company, 

agsL 

SHEFFIELD     MANUFACTURING    COM- 
PANY. 


To  Supreme  Court:. 

In  pursuance  of  an  order  of  this  court  made  in  the  above-entitled 
action,  on  the  30th  day  of  March,  1895,  by  which  it  was  referred  to 
the  undersigned,  referee,  to  ascertain  and  compute  the  amout  due 
to  the  plaintiff  upon  and  by  virtue  of  the  bonds,  interest,  warrants  or 
coupons  and  the  mortgage  mentioned  and  set  forth  in  the  complaint 
herein,  which  is  filed  in  this  action,  and  also  to  take  proof  of  the 
facts  and  circumstances  stated  in  the  complaint,  I  do  report  that  I 
took  the  oath  required  by  the  rules  and  practice  of  this  court  which 
is  hereto  annexed  ;  thati  was  attended  by  Rosendale  &  Hessberg,  the 
attorneys  for  the  plaintiff  herein;  that  I  took  proof  of  the  facts  and 
circumstances  as  required  by  the  order  appointing  me,  which  are 
hereto  annexed  and  form  a  part  of  my  report;  that  I  have  computed 
and  ascertained  the  amount  due  to  the  plaintiff  as  aforesaid  upon  the 
bonds,  interest,  warrants  or  coupons  and  mortgage  set  forth  and 
referred  to  in  the  complaint,  and  I  find  and  accordingly  report  that 
there  is  due  to  the  plaintiff  for  principal  and  interest  on  said  interest, 
warrants  or  coupons  under  the  said  bonds  and  mortgage,  at  the  date 
of  this  mv  report,  the  sum  of  four  hundred  and  sixty-six  thousand, 
four  hundred  and  ten  and  yrrV  dollars  ($466,410.41). 

Schedule  "  A,"  hereto  annexed,  shows  a  statement  of  the  amount 
due  for  principal  and  interest  respectively,  the  period  of  computa- 
tion of  the  interest,  and  its  rate. 

I  further  report  that  the  interest,  warrants  or  coupons  annexed  to 
the  bonds  issued  under  the  mortgage  set  forth  in  the  complaint, 
which  became  due  and  payable  on  the  ist  day  of  August,  1894,  all 
remain  unpaid,  and  that  they  remained  unpaid  and  in  arrear  for  a 
period  of  six  months  from  the  said  ist  day  of  August,  1894,  at  the 
time  of  the  commencement  of  the  action  for  the  foreclosure  of  the 
mortgage  set  forth  in  the  complaint.  That  demand  was  duly  made 
for  the  payment  of  the  said  interest,  warrants  or  coupons  due  upon 
the  said  ist  day  of  August,  1894,  at  the  office  of  the  defendant  at 
Saugerties,  New  York,  and  that  payment  was  refused. 

And  I  further  find  and  report  that  the  said  plaintiff,  as  trustee 
under  the  mortgage  or  deed  of  trust  in  the  complaint  referred  to, 


476 


FORECLOSURE. 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 


and  according  to  the  terms  and  provisions  of  the  said  mortgage, 
exercised  his  option  and  declared  the  whole  amount  of  all  the  bonds 
referred  to  in  the  complaint  to  be  due  and  payable,  by  reason  of  the 
default  upon  the  interest,  warrants  or  coupons  payable  on  said  ist 
day  of  August,  1894,  and  by  reason  of  the  continuance  of  said  de- 
fault for  a  period  of  more  than  six  months  after  said  ist  day  of 
August,  1894. 

And  I  further  find  and  report  that  the  facts  and  circumstances 
stated  in  said  complaint  are  in  all  respects  true;  the  schedule  hereto 
annexed  shows  the  payments  which  have  been  made  on  account  of 
the  demands  mentioned  in  the  complaint  and  which  ought  to  be 
credited  thereon. 

Dated  April  ist,  1895.  H.  A.   PECKHAM, 

Referee, 
(Attach  schedule.) 

Order  Appointing  Referee  to  Sell. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  city  hall,  in  the  city  of  Albany,  on  the  ist  day  of 
April,  1895. 

Present  —  Hon.  D.  Cady  Herrick,  Justice. 

SUPREME  COURT  — Ulster  County. 


CHARLES  A.  SPALDING,  as  Trustee  for 
THE  Benefit  of  the  Holders  of  the 
Bonds  Secured  by  a  Mortgage  or  Deed 
OF  Trust  Executed  by  the  Sheffield 
Manufacturing  Company, 

agst. 

SHEFFIELD    MANUFACTURING 
COMPANY. 


The  summons  and  complaint  in  this  action  having  been  served  on 
the  defendant  more  than  twenty  days  since,  and  the  defendant  not 
having  appeared,  answered  or  demurred  herein : 

Now,  on  reading  and  filing  the  affidavit  of  Edgar  M.  Haines,  the 
managing  clerk  for  the  attorneys  for  the  plaintiff  herein,  proving 
that  the  complaint  in  this  action  and  due  notice  of  the  pendency  of 
this  action  were  duly  filed  in  the  office  of  the  clerk  of  the  county  of 
Ulster,  on  the  8th  day  of  February,  1895.  That  there  are  no  infants 
or  absentees.  That  the  defendant  is  in  default  and  has  failed  to 
appear  herein.  And  an  order  of  reference  having  been  made  to 
compute  the  amount  due  to  the  plaintiff,  upon  the  bonds  and  mort- 
gage set  forth  and  referred  to  in  the  complaint. 

On  reading  and  filing  the  report  of  the  referee  named  in  the  order 
of  reference,  by  which  report  bearing  date  the  ist  day  of  April,  1895, 
it  appears  that  the  interest  warrants  or  coupons  due  upon  the  bonds 


FORECLOSURE.  477 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 


referred  to  in  the  said  mortgage  and  in  the  complaint  herein,  and 
which  according  to  the  said  warrants  or  coupons  became  due  and 
payable  on  the  ist  day  of  August,  1894,  were  all  unpaid,  and  that  all 
of  the  said  interest  warrants  or  coupons  which  became  due  and 
payable  upon  the  ist  day  of  August,  1894,  remained  unpaid  and  in 
arrears  for  a  period  of  six  months  from  the  said  ist  day  of  August, 
1894.  That  demand  was  duly  made  for  the  payment  of  the  said 
interest  warrants  or  coupons  due  upon  the  said  ist  day  of  August, 
1894,  at  the  office  of  the  defendant  at  Saugerties,  New  York,  which 
payment  was  then  and  there  refused,  but  the  same  remain  wholly 
unpaid. 

And  it  further  appearing  by  the  report  of  said  referee  that  the  said 
plaintiff  herein,  as  trustee  under  the  mortgage  or  deed  of  trust  in  the 
complaint  referred  to,  and  according  to  the  terms  and  provisions 
thereof  has  exercised  his  option  and  declared  the  whole  amount  of 
all  the  bonds  referred  to  in  the  complaint  to  be  due  and  payable  by 
reason  of  the  default  upon  the  interest  warrants  or  coupons  payable 
on  the  said  ist  day  of  August,  1894,  and  a  continuance  of  said  default 
for  a  period  of  six  months,  and  that  no  part  of  the  principal  of  the 
said  bonds  has  been  paid,  except  the  sum  of  $5,606.25,  and  that  the 
whole  amount  of  said  bonds  became  due  and  payable  on  said  ist  day 
of  February,  1894,  except  said  sum  of  $5,606.25. 

And  it  further  appearing  by  the  report  of  the  said  referee  that  the 
facts  set  forth  in  the  complaint  herein  are  true,  and  that  there  is  due 
of  principal,  secured  by  the  said  mortgage  or  deed  of  trust,  the  sum 
of  four  hundred  and  forty-six  thousand  dollars  ($446,000)  of  principal 
(less  said  sum  of  $5,606.25)  with  interest  thereon  from  the  ist  day  of 
February,  1894,  making  in  all  the  sum  of  $466,410.41. 

Now,  on  motion  of  Rosendale  &  Hessberg,  the  attorneys  for  the 
plaintiff  herein, 

It  is  adjudged  that  the  mortgaged  property  described  in  the  com- 
plaint in  this  action  (insert  description)  be  sold  at  public  auction  in 
the  village  of  Saugerties,  county  of  Ulster  and  State  of  New  York,  by 
or  under  the  direction  of  John  W.  Searing,  Esq.,  of  Kingston, 
Ulster  county,  New  York,  who  is  hereby  appointed  referee  for  that 
purpose ;  that  the  said  referee  give  public  notice  of  the  time  and  place 
of  such  sale  according  to  law  and  the  practice  of  this  court;  that  the 
plaintiff,  or  any  other  party,  may  become  a  purchaser  on  such  sale; 
that  the  said  referee  execute  to  the  purchaser  or  purchasers  a  certifi- 
cate or  bill  of  sale  or  other  instrument  which  may  be  proper  or  neces- 
sary to  convey  the  title  of  the  property  so  to  be  sold;  that  out  of  the 
moneys  arising  from  such  sale,  after  deducting  the  amount  of  his 
fees  and  expenses  on  such  sale,  the  said  referee  pay  to  the  plaintiff, 
or  his  attorneys,  the  sum  of  $100.30,  adjudged  to  the  plaintiff'  for 
costs  and  charges  in  this  action,  and  also  the  sum  $200,  which  is 
hereby  allowed  and  adjudged  to  the  plaintiff  as  and  for  an  extra 
allowance  in  addition  to  said  costs,  making  together  the  sum  $300.30, 
with  interest  from  the  date  hereof;  and  also  the  amount  so  reported 
due  as  aforesaid,  together  with  legal  interest  thereon  from  the  date 
of  the  said  report,  or  so  much  thereof  as  the  purchase  money  of  the 
mortgaged  property  will  pay  of  the  same,  take  a  receipt  therefor  and 


4/8  FORECLOSURE. 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 


file  it  with  his  report  of  sale;  that  he  pay  over  the  surplus  moneys 
arising  from  the  sale,  if  any  there  should  be,  to  the  tresasurer  of  the 
county  of  Ulster,  within  five  days  after  the  same  be  received  and 
ascertainable,  subject  to  the  further  order  of  the  court;  that  he  make 
a  report  of  such  sale  and  file  it  with  the  clerk  of  this  court  with  all 
convenient  speed;  that  if  the  proceeds  of  such  sale  be  insufficient  to 
pay  the  amount  so  reported  to  be  due  the  plaintiff,  with  interest  and 
costs  aforesaid,  the  said  referee  specify  the  amount  of  such  defi- 
ciency in  the  report  of  sale,  and  that  the  defendant,  the  Sheffield 
Manufacturing  Company,  pay  to  the  plaintiff  the  residue  of  the  debt 
remaining  unsatisfied  after  a  sale  of  the  mortgaged  property  and  the 
application  of  the  proceeds  pursuant  to  the  directions  contained 
herein,  and  that  the  plaintiff  have  execution  therefor;  and  that  the 
purchaser  or  purchasers  at  such  sale  be  given  the  possession  of  said 
property  on  production  of  the  referee's  certificate  or  bill  of  sale  or 
other  instruments  which  may  be  executed  by  said  referee  pursuant 
to  his  decree  and  the  production  of  a  certified  copy  of  the  order  of 
this  court  confirming  the  report  of  said  sale. 

It  is  further  adjudged  that  the  defendant  and  all  persons  claiming 
under  it,  after  the  filing  of  such  notice  of  the  pendency  of  this  action, 
be  forever  barred  and  foreclosed  of  all  right,  title,  interest  and  equity 
of  redemption  in  the  said  mortgaged  property,  or  any  part  thereof. 

It  is  further  adjudged  that  the  said  referee  may  accept  in  lieu 
of  cash  upon  said  sale,  (after  received  a  sum  sufficient  to  pay  the 
costs,  charges  and  disbursements  hereinbefore  directed  to  be 
made),  the  voucher,  receipt  or  acquittance  of  any  bond  or  bond- 
holders or  any  committe  or  trustee  of  all  or  any  of  the  bondholders 
representing  the  bonds  referred  to  in  the  mortgage  described  in  the 
complaint  herein  and  referred  to  in  the  judgment,  for  such  sum  or 
sums  as  would  be  represented  by  the  said  bond  or  bonds  upon  a  dis- 
tribution of  the  proceeds  of  said  sale  ratably  and  proportionately 
among  all  of  the  bondholders  after  deducting  the  costs,  charges  and 
expenses  hereinbefore  referred  to.  The  said  receipt,  voucher  or 
acquittance  to  stand  and  be  in  lieu  of  a  similar  cash  amount  which 
would  be  distributed  or  be  paid  as  a  dividend  upon  and  to  such  bond 
by  the  plaintiff  or  otherwise  as  trustee  for  said  bondholders  upon  a 
sale  of  the  property,  and  the  amount  of  such  receipt  or  voucher  is  to 
be  charged  to  each  of  said  bonds  as  a  payment  to  that  amount 
received  thereon. 

It  is  further  adjudged  and  decreed  that  the  said  plaintiff,  or  said 
referee,  or  their  successors,  or  any  person  in  their  behalf,  after  the 
confirmation  of  the  sale  aforesaid,  may  at  the  foot  of  this  decree 
apply  to  the  court  for  such  other  or  further  order  or  supplemental 
judgment  as  may  be  deemed  proper  and  necessary  for  the  purpose 
of  ascertaining  the  names  of  the  owners,  holders  and  representatives 
of  ?aid  bonds  and  coupons,  together  with  the  amount  due,  owing 
and  unpaid  thereon,  and  for  the  purpose  of  ascertaining  the  names 
of  the  persons  and  corporations  who  are  entitled  to  share  in  the 
distribution  of  the  said  proceeds  of  the  sale  hereinbefore  directed 
to  be  made,  or  who  are  entitled  to  be  paid  the  sum  due  and  owing 
with  accrued  interest  to  the  date  of  said  payment  upon  the  respec- 


FORECLOSURE.  479 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 


tive  bonds  issued  and  outstanding  in  the  mortgages  referred  to  in 
the  complaint  and  judgment  herein,  or  for  such  other  or  further 
order  in  the  premises  as  may  be  or  become  necessary  from  time  to 
time. 

Clerk  of  the  county  of  Ulster  will  enter. 

D.   CADY  HERRICK, 

Justice  Supreme  Court. 

Order  Appointing  Referee   to  take    Proof  of  Ownership  of 

Bonds. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  city  hall,  in 
the  city  of  Albany,  on  the  25th  day  of  June,  1895. 

Present  —  Hon.  1).  Cady  Herrick,  Justice. 
SUPREME  COURT  — Ulster  Cou.nty. 


CHARLES  A.  SPALDING,  as  Trustee  for 
THE  Benefit  of  the  Holders  of  the 
Bonds  Secured  by  a  Mortgage  or  Deed 
OF  Trust  Executed  by  the  Sheffield 
Manufacturing  Company, 

agst. 

SHEFFIELD    MANUFACTURING 
COMPANY. 


On  reading  and  filing  the  report  of  John  W.  Searing,  Esq.,  the 
referee  heretofore  appointed  herein,  dated  the  24th  day  of  .\pril, 
1895,  of  the  sale  of  the  mortgaged  property  mentioned  and  described 
in  the  complaint  in  this  action,  and  on  motion  of  Rosendale  &  Hess- 
berg,  the  attorneys  for  the  plaintiff. 

It  is  ordered,  that  the  said  report  be,  and  the  same  hereby  is,  in 
all  things  confirmed. 

And  it  appearing  from  the  report  of  Henry  A.  Peckham,  Esq., 
appointed  referee  to  compute  the  amount  due  the  plaintiff  by  the 
order  of  this  court,  made  on  the  29th  day  of  March,  1895,  and 
entered  in  the  Ulster  county  clerk's  office  on  the  2d  day  of  .'Vpril, 
1895,  that  the  plaintiff  herein  has  in  his  possession  and  that  there 
has  been  paid  to  him  the  sum  of  five  thousand,  six  hundred  and  six 
dollars  and  twenty-five  cents  ($5,606.25),  being  the  proceeds  of  the 
property  sold  by  the  defendant  and  covered  by  the  mortgage 
described  in  the  complaint  and  judgment  herein. 

And  it  further  appearing  that  it  was  adjudged  and  decreed  by  the 
judgment  herein,  entered  in  the  Ulster  county  clerk's  office  on  the 
2d  day  of  April,  1895,  that  the  plaintiff  herein,  or  any  person  in  his 
behalf,  after  the  confirmation  of  the  sale  aforesaid,  might  at  the  foot 
of  the  said  decree,  apply  to  the  court  for  such  other,  further  or  sup- 
plemental judgment  as  might  be  deemed  proper  and  necessary  in  the 
premises. 


48o 


FORECLOSURE. 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 


It  is  hereby  further  ordered,  that  the  said  Charles  A.  Spalding,  as 
trustee  for  the  benefit  of  the  holders  of  the  bonds  secured  by  the 
mortgage  referred  to  in  the  complaint  herein,  be,  and  he  hereby  is, 
ordered  and  directed  to  transfer  and  pay  to  John  W.  Searing,  Esq., 
the  referee  designated  to  sell  the  property  described  in  the  judg- 
ment herein,  the  said  sum  of  five  thousand,  six  hundred  and  six  dol- 
lars and  twenty-five  cents  ($5,606.25),  and  that  said  referee  hold  the 
same  for  distribution  among  the  bondholders  entitled  thereto  ratably 
and  proportionately  and  in  the  same  manner  that  the  moneys  realized 
upon  the  sale  of  the  property  described  in  said  judgment  is  to  be 
distributed. 

It  is  further  ordered,  that  upon  the  payment  so  directed  to  be 
made  by  said  Charles  A.  Spalding,  as  trustee  as  aforesaid,  he  be  dis- 
charged from  all  claims,  demands  and  liabilities  whatsoever  to  the 
bondholders,  or  either  of  them,  for  whose  benefit  said  mortgage  was 
executed  to  the  plaintiff,  or  from  any  claims,  demands  or  liabilities 
arising  or  which  might  arise  out  of  his  trusteeship  under  said  mort- 
gage described  in  the  complaint  herein. 

It  is  further  ordered,  that  said  John  W.  Searing,  as  such  referee  as 
aforesaid,  give  notice  to  the  owners  and  holders  of  the  bonds  issued 
under  the  mortgage  described  in  the  complaint  herein,  that  they 
make  proof  before  him  at  the  office  of  the  plaintiff's  attorneys,  in  the 
city  of  Albany,  on  the  24th  day  of  July,  1895,  at  ten  o'clock  in  the 
forenoon  of  that  day,  of  their  ownership  of  said  bonds;  that  said 
notice  shall  be  given  by  mailing  a  copy  thereof  to  each  bondholder 
whose  name  appears  on  the  books  of  the  defendant  as  the  owner  or 
holder  of  any  of  said  bonds  at  least  twenty-one  days  prior  to  said 
date  of  hearing,  and  by  publishing  such  notice  in  the  Saugerties  Post 
and  the  New  York  Commercial  Advertiser  once  a  week  for  three 
successive  weeks  immediately  preceding  the  date  of  said  hearing. 

It  is  further  ordered,  that  the  said  referee  proceed  at  the  time 
and  place  stated  in  said  notice  to  take  proof  of  the  ownership  of  said 
bonds,  and  each  of  them,  and  that  after  the  payment  of  the  attorneys 
and  counsel  fees  and  the  costs,  charges  and  expenses  herein,  he  dis- 
tribute the  balance  of  the  moneys  in  his  hands  ratably  and  propor- 
tionately among  all  of  the  bondholders  of  the  said  corporation,  in 
accordance  with  the  amount  of  bonds  held  by  each  of  said  persons 
based  upon  the  par  value  of  said  bonds  and  that  he  take  a  voucher 
for  each  payment  made. 

It  is  further  ordered,  that  the  notice  herein  required  to  be  given 
and  the  payment  hereby  directed  to  be  made,  shall  be  given  and  the 
payment  shall  be  made  to  the  committee  for  sundry  bondholders 
which  represent  bondholders,  a  list  of  whose  names  with  a  statement 
of  the  amount  of  their  bonds,  is  attached  to  the  schedule  annexed  to 
the  report  of  the  referee,  dated  the  24th  day  of  April,  1895,  instead 
of  the  bondholders  represented  by  said  committee,  and  that  the 
voucher  of  said  committee,  or  a  majority  of  them,  shall  be  deemed 
and  hereby  is  deemed  a  proper  payment  to  and  on  behalf  of  such 
bondholders  who  are  represented  by  said  committee  as  aforesaid.  _ 

It  is  further  ordered,   that  the  said  referee  be,  and  he  hereby  is, 
required  to  make  a  report  of  his  proceedings  to  the  court,  and  that 


FORECLOSURE.  48 1 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 

upon  the  confirmation  thereof  he  be  discharged  from  all  claims, 
demands  and  liabilities  whatsoever  to  any  or  all  of  said  bondholders 
of  said  corporation. 

It  is  further  ordered,  that  in  the  event  of  any  bondholder  failing  to 
make  proof  of  ownership  as  herein  required,  and  who  may  be  or  become 
entitled  to  any  dividend  herein,  that  said  referee  be,  and  he  hereby 
is,  ordered  and  directed  to  deposit  the  dividend  or  payment  so  to 
be  made  to  said  bondholders  with  the  treasurer  of  the  county  of 
Ulster,  to  the  credit  of  said  bondholder  or  bondholders  entitled  to 
the  same,  subject  to  the  further  order  of  the  court  in  the  premises. 

It  is  further  ordered,  that  the  plaintiff  herein,  or  said  referee,  or 
their  successors,  or  any  person  in  their  behalf,  may  apply  to  the 
court  for  such  other  or  further  order  in  the  premises  as  may  be  or 
become  necessary  from  time  to  time. 

Enter  in  Ulster  county. 

JAS.   D.   AVALSH, 

Clerk. 

Notice  to  Bondholders. 

SUPREME  COURT  — Ulster  Couxty. 


CHARLES  A.  SPALDING,  as  Trustee  for 
THE  Benefit  of  the  Holders  of  the 
Bonds  Secured  by  a  Mortgage  or  Deed 
of  Trust  Executed  by  the  Sheffield 
Manufacturing  Company, 

agst. 

SHEFFIELD     MANUFACTURING    COM- 
PANY. 


Pursuant  to  an  order  of  the  Supreme  Court,  granted  at  a  Special 
Term  thereof,  held  at  the  city  hall,  in  the  city  of  Albany,  on  the 
25th  day  of  June,  1895,  and  entered  in  the  Ulster  county  clerk's 
office  on  the  27th  day  of  June,  1895,  notice  is  hereby  given,  that  all 
persons  holding  bonds  of  the  Sheffield  Manufacturing  Company  are 
hereby  required  to  come  in  and  present  their  bonds  for  proof  before 
me,  at  the  office  of  Rosendale  &:  Hessberg,  91  State  street,  in  the 
city  of  Albany,  on  the  24th  day  of  July,  1895,  at  ten  o'clock  in  the 
forenoon  of  that  day. 

Dated,  June  27th,  1895.  J-  W.   SEARING, 


Referee. 


Rosendale  &  Hessberg, 

Plaintiff's  Attorneys. 

[Special  Actions  —  31.] 


482 


FORECLOSURE. 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 


Referee's  Report  as  to  Ownership  of  Bonds. 

SUPREME  COURT  — Ulster  County. 


CHARLES  A.  SPALDING,  as  Trustee  for 
THE  Benefit  of  the  Holders  of  the  Bonds 
Secured  by  a  Mortgage  or  Deed  of  Trust 
Executed  by  the  Sheffield  Manufactur- 
ing Company, 

SHEFFIELD     MANUFACTURING    COM- 
PANY. 


The  undersigned,  the  referee  duly  appointed  herein,  by  the  judg- 
ment granted  on  the  ist  day  of  April,  1895,  and  entered  in  the  Ulster 
county  clerk's  ofifice  on  the  second  day  of  April,  1895,  and  who  duly 
made  a  report  of  sale  herein,  dated  the  24th  day  of  April,  1895,  and 
which  was  duly  confirmed  by  an  order  of  this  court  granted  on  the 
25th  day  of  June,  1895,  and  entered  in  the  Ulster  county  clerk's 
office  on  the  27th  day  of  June,  1895 ;  and  who  in  and  by  the  terms  of 
the  said  order  of  confirmation  was  continued  as  referee,  for  the  pur- 
poses in  said  order  set  forth,  respectfully  reports  as  follows: 

I.  That  pursuant  to  the  terms  and  provisions  of  the  said  order 
made  herein,  at  a  Special  Term  of  the  Supreme  Court,  held  at  the 
city  hall,  in  the  city  of  Albany,  on  the  25th  day  of  June,  1895,  and 
entered  in  the  Ulster  county  clerk's  ofifice  on  the  27th  day  of  June^ 
1895,  he  gave  notice  to  the  owners  and  holders  of  the  bonds  issued 
under  the  mortgage  described  in  the  complaint  herein,  that  they 
would  be  required  to  present  their  bonds  for  proof  before  the  under- 
signed, at  the  office  of  Rosendale  &  Hessberg,  No.  91  State  street, 
in  the  city  of  Albany,  on  the  24th  day  of  July,  1895,  at  ten  o'clock 
in  the  forenoon  of  that  day,  that  said  notice  was  given  by  mailing 
a  copy  to  each  bondholder,  whose  name  appeared  on  the  books  of 
the  Sheffield  Manufacturing  Company,  the  defendant  herein,  as  the 
owner  or  holder  of  any  of  said  bonds  at  least  twenty-one  days  prior 
to  the  said  date  of  hearing  and  by  publishing  said  notice  in  the 
Saugerties  Post  and  New  York  Commercial  Advertiser,  once  a 
week  for  three  successive  weeks  immediately  preceding  the  date 
of  said  hearing;  that  proof  of  mailing  and  proofs  of  publication  are 
hereto  annexed  and  form  a  part  of  this  report. 

II.  That  at  the  time  and  place  set  forth  in  said  notice,  the  under- 
signed duly  appeared  and  took  the  oath  required  by  law,  which  is 
hereto  annexed  and  forms  a  part  of  this  report. 

That  I  was  attended  on  said  hearing  by  Messrs.  Rosendale  & 
Hessberg,  the  attorneys  for  plaintiff;  by  Charles  Davis,  attorney 
for  L.  Newman;  by  S.  W.  Brown,  attorney  for  John  Kissock  &  Com- 
pany, and  by  Mrs.  Benjamin  Harmore  in  person;  the  parties  so 
appearing  herein  doing  so  only  to  make  proof  of  bonds  held  by  them, 


FORECLOSURE.  483 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 

or  their  clients,  and  waiving  the  service  of  all  future  and  further 
notices  herein. 

That  I  proceeded  to  take  the  documentary  and  oral  proofs  pre- 
sented by  the  said  parties  in  interest,  and  that  the  testimony  so 
taken  by  me  is  hereto  annexed  and  forms  a  part  of  this  my  report. 

That  schedule  "  I,"  hereto  annexed  and  which  forms  a  part  hereof, 
shows  a  list  of  the  owners  of  bonds  with  their  last  known  place  of 
residence,  and  the  amount  of  bonds  respectively  issued  to  each  holder. 

That  the  total  par  or  face  value  of  the  bonds  so  proved  as  aforesaid, 
is  the  sum  of  four  hundred  and  forty-one  thousand,  two  hundred  and 
fifty  dollars  ($441,250). 

That  schedule  "  B/'  hereto  annexed  and  which  forms  a  part  of 
this  my  report,  sets  forth  the  names  of  the  holders  of  the  bonds  and 
their  last  known  place  of  residence,  and  the  amount  of  bonds  held 
by  each,  as  appears  from  the  books  of  the  company;  such  bond- 
holders not  having  made  the  proof  of  ownership  thereof,  but  who 
claim  to  be  the  present  owners  of  such  outstanding  bonds,  so  far  as 
the  undersigned  has  been  able  to  ascertain;  that  the  total  par  or 
face  value  of  said  bonds  is  the  sum  of  four  thousand  seven  hundred 
and  fifty  dollars  ($4,750). 

That  the  total  par  or  face  value  of  the  bonds  issued  under  the 
mortgage  set  forth  in  the  complaint,  and  referred  to  in  the  judg- 
ment herein,  is  the  sum  of  four  hundred  and  forty-six  thousand  dol- 
lars ($446,000.)     All  of  which  is  respectfully  submitted 

April  16,1896.  JOHN  W.   SEARING, 

(Attach  schedules.)  Referee. 

Order  to  Pay  Dividend. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  chambers  in  the  city  of  Albany,  on  the  17  day  of  Aprif 
1896. 

Present  —  Hon.  Alden  Chester,  Justice. 
SUPREME  COURT— Ulster  County. 


CHARLES  A.  SPALDING,  as  Trustee  for 
THE  Benefit  of  the  Holders  of  the  Bonds 
Secured  by  a  Mortgage  or  Deed  of  Trust 
Executed  by  the  Sheffield  Manufactur- 
ing Company 

agst. 

SHEFFIELD     MANUFACTURING    COM- 
PANY. 


On  reading  and  filing  the  report  of  John  W.  Searing,  Esq.,  the 
referee  heretofore  duly  appointed  herein,  dated  the  i6th  day  of 
April,  1896,  and  on  motion  of  Rosendale  &  Hessberg,  the  attorneys 
for  plaintift  ;  it  is 


484 


FORECLOSURE. 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 

Ordered,  that  said  report  be  and  the  same  is  hereby  in  all  things 
confirmed. 

(Here  insert  allowance  to  counsel  for  services  on  reference  and 
provide  for  disbursements.) 

It  is  further  ordered,  that  said  referee  be  and  he  hereby  is  directed 
and  empowered  to  pay  a  first  and  final  dividend  of  32^%^^  per  centum 
to  the  bondholders  of  said  corporation,  and  that  said  dividend  be 
paid  to  the  persons  and  in  the  amount  set  forth  in  the  schedule 
hereto  annexed  and  marked  "  A  "  and  forming  part  of  this  order. 

It  is  further  ordered  that  said  dividend  as  aforesaid  be  paid  to 
the  said  bondholders  or  said  committee  only  upon  their  giving  said 
referee  a  proper  voucher  therefor,  and  upon  their  surrendering  the 
bonds  issued  under  the  mortgage  described  in  the  judgment  herein. 

It  is  further  ordered,  that  in  the  event  of  any  bondholder  failing 
to  surrender  the  bond  or  bonds  held  by  him,  that  said  referee  be 
and  he  hereby  is  ordered  and  directed  to  deposit  the  dividend  or 
payment  so  to  be  made  to  said  bondholder  with  the  treasurer  of  the 
county  of  Ulster,  to  the  credit  of  said  bondholder  or  bondholders 
entitled  to  the  same,  subject  to  the  further  order  of  the  court  in  the 
premises. 

It  is  further  ordered,  that  said  referee  file  a  further  report  showing 
his  compliance  with  the  terms  and  provisions  of  this  order,  and  that 
upon  the  filing  of  his  vouchers  and  the  confirmation  of  his  report, 
the  said  referee  be  discharged  from  all  further  demands,  claims  or 
liens  to  any,  either  or  all  of  said  bondholders  of  said  corporation. 

It  is  further  ordered,  that  the  plaintiff  herein,  or  the  referee,  or 
their  successors,  or  any  person  in  their  behalf,  may  apply  to  this 
court  for  such  other  or  further  order  in  the  premises  as  may  be 
deemed  proper  or  necessary  from  time  to  time. 

The  clerk  of  Ulster  county  will  enter. 

ALDEN  CHESTER, 

Jus.  Sup.  Ct. 


Final  Report  of  Referee. 


SUPREME  COURT  — Ulster  County. 

CHARLES  A.  SPALDING,  as  Trustee  for 
THE  Benefit  of  the  Holders  of  the  Bonds 
Secured  by  a  Mortgage  or  Deed  of  Trust 
Executed  by  the  Sheffield  Manufactur- 
ing Company, 


SHEFFIELD 


agst. 

MANUFACTURING    COM- 
PANY. 


To  the  Supreme  Court: 

The  undersigned,  the  referee  in  the  above-entitled  action,  respect- 
fully reports,  that  pursuant  to   the   final   order  made   herein  at  a 


11 


FORECLOSURE.  485 


Art.  12.     Precedents  for  Foreclosure  of  Mortgage  Given  to  Secure  Bonds. 

Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  chambers,  in  the  city  of  Albany,  on  the  17th  day  of  April, 
1896,  and  entered  in  the  Uister  county  clerk's  office  on  the  20th  day 
of  April,  1896,  he  proceeded  to  make  a  full  and  final  distribution 
of  all  the  moneys  in  his  hands  as  such  referee. 

That  he  duly  paid  a  dividend  of  32 ^^//p  per  centum  to  the  bond- 
holders of  said  corporation,  except  those  hereinafter  mentioned,  and 
that  he  has  taken  a  proper  voucher  therefor;  that  all  of  said  bond- 
holders who  have  accepted  said  dividend  have  surrendered  to  the 
undersigned  their  bonds  which  were  held  by  them;  that  the  sum  so 
paid,  and  the  bondholders  to  whom  paid,  are  as  follows,  viz: 

That  the  only  bondholders  who  failed  to  take  the  dividend  ordered 
and  directed  to  be  paid  to  them,  are  as  follows,  viz: 

NAME.  DIVIDEND. 

M.  Fitzgibbon $32  98 

Jam.es  A.  Townsend 32  98 


$65  96 


and  to  cover  said  dividend  I  have  deposited  with  George  Deyo,  as 
treasurer  of  the  county  of  Ulster,  the  sum  of  $65.96,  and  to  the 
credit  of  said  bondholders,  and  have  taken  his  voucher  therefor;  said 
deposit  having  been  made  subject  to  the  further  order  and  direction 
of  the  court  in  the  premises. 

That  all  of  the  moneys  so  deposited  and  distributed  by  me  amount 
to  the  sum  of  $147,108.77. 

That  herewith  I  return  and  duly  file  all  the  vouchers  taken  by  me 
as  aforesaid. 

That  I  have  now  fully  and  entirely  distributed  all  of  the  moneys 
and  assets  in  my  hands.  And  the  undersigned  makes  this  report 
pursuant  to  the  terms  and  provisions  of  the  order  aforesaid,  for  the 
purpose  of  duly  filing  the  same  in  the  Ulster  county  clerk's  office. 

Dated  at  Kingston,  May  29th,  1896. 

JOHN  W.   SEARING, 

Referee. 
(Add  verification.) 


CHAPTER  V. 

ACTION  TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO 

REAL  PROPERTY. 

PAGE. 

Article  i  .   Nature  and  object  of  action 486 

2.  When  action  maintained  and  what  must  be  alleged. 

Sees.  1638,  1639,   1650 487 

3.  Proceedings  after  issue  joined.     Sees.  1640,    1641, 

1642,  1643 493 

4.  Judgment  and  its  effect.     Sees.  1644,   1645,  1646..  495 

5.  Proceedings  when  against  woman  claiming  dower. 

Sees.  1647,   1648,    1649 497 

Sections  of  the  Code  of  Procedure  and  Where  Found  in  this 

Chapter. 
sec.  art.  page. 

1638.  Who  may  maintain  action 2  487 

1639.  Complaint 2  487 

1640.  Proceedings  when  defendant  denies  plaintiff's   title  3  493 

1641.  Id. ;  when  he  pleads  title 3  493 

1642.  Proceedings  the  same  as  in  ejectment 3  493 

1643.  Proceedings  when  defendant  claims  in  reversion  or  remainder.        3  494 

1644.  Judgment  awarding  defendant  possession,  etc 4  495 

1645.  Judgment  for  plaintiff 4  49^ 

1646.  Effect  of  judgment 4  49^ 

1647.  Action  to  determine  widow's  dower 5  497 

1648.  Proceedings,  if  plaintiff  admits  defendant's  claim 5  497 

1649.  Id. ;  when  defendant's  claim  is  denied 5  49^ 

1650.  This  article  applies  to  corporations 2  498 


ARTICLE    I. 
Nature  and  Object  of  Action. 

To  remedy  the  necessity  for  some  form  of  procedure  by  which 
claim  of  title  to  real  property  could  be  quieted  by  action  taken 
on  behalf  of  the  owner  in  possession,  the  Revised  Statutes  pro- 
vided a  remedy  by  way  of  proceedings  for  determination  of  claims 
to  real  estate,  to  be  taken  by  any  person  in  possession,  claiming 
the  fee  for  life,  or  for  a  certain  term,  by  service  of  notice  upon  the 
claimant.  The  old  Code,  by  §  449-  enacted  that  these  proceed- 
ings might  be  prosecuted  by  action,  and  from  this  arose  much 
confusion,  it  being  held  in  Crane  v.  Sazvyer,  5  How.  372,  that  the 
section  was  inoperative.      Subsequently  it  was  held   in  Barnard 

[486] 


TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY.      487 


Art.  2.     When  Action  Maintained,  and  What  Must  be  Alleged. 


V.  Siinms,  42  Barb.  304;  Fisher  v.  Hepburn,  48'  N.  Y.  51,  that 
either  the  remedy  provided  by  the  Revised  Statutes,  or  by  the 
Code,  might  be  prosecuted.  It  was  held  in  the  latter  case  and  in 
Biirnham  v.  Onderdonk,  41  N.  Y.  425,  to  be  a  special  proceeding 
under  the  former  Code,  and  not  an  action. 

Nearly  all  of  the  sections  relating  to  the  action  to  compel  the 
determination  of  a  claim  to  real  property  were  amended  in  1891. 
In  this  connection  attention  is  called  to  the  provisions  of  chapter 
503  of  the  Laws  of  1890,  entitled  "An  Act  to  quiet  the  title  to  real 
property  in  certain  cases  conveyed  pursuant  to  judicial  decree, 
which  decree  had  been  lost  or  destroyed."  This  act  provides  for 
a  petition  to  the  Supreme  Court,  an  order  for  publication  and 
notice,  and  inquiry  and  final  order  in  the  matter,  and  for  the 
entry  of  the  order  as  well  as  for  the  recording  and  indexing  of 
the  sheriff's  or  referee's  deed  of  the  premises. 

ARTICLE    11. 

When    Action    Maintained,    and  .What    Must    be    Al- 
leged.   §§  1638,  1639,  1650. 

§  1638.  [A'md,  1891.]     Who  may  maintain  action. 

Where  a  person  has  been,  or  he  and  those  whose  estate  he  has,  have  been  for 
one  year  in  possession  of  real  property,  or  of  any  undivided  interest  therein, 
claiming  it  in  fee,  or  for  life,  or  for  a  term  of  years  not  less  than  ten,  he  may 
maintain  an  action  against  any  other  person  to  compel  the  determination  of  any 
claim  adverse  to  that  of  the  plaintiff  which  the  defendant  makes  to  any  estate  in 
that  property  in  fee,  or  for  life,  or  for  a  term  of  years  not  less  than  ten,  in  pos- 
session, reversion  or  remainder,  or  to  any  interest  in  that  property,  including 
any  claim  in  the  nature  of  an  easement  therein,  whether  appurtenant  to  any 
other  estate  or  lands  or  not,  and  also  including  any  lien  or  incumbrance  upon 
said  property,  of  the  amount  or  value  of  not  less  than  two  hundred  and  fifty  dol- 
lars.     But  this  section  does  not  apply  to  a  claim  for  dower. 

§  1639.  fAm'd,  1891.]     Complaint. 

The  complaint  in  such  an  action  must  set  forth  facts  showing: 

1.  The  plaintiff's  right  to  the  real  property  ;  whether  his  estate  therein  is  in 
fee,  or  for  life,  or  for  a  term  of  years  not  less  than  ten,  and  whether  he  holds  it 
as  heir,  devisee  or  purchaser,  with  the  source  from  or  means  by  which  his  title 
immediately  accrued  to  him. 

2.  That  the  property,  at  the  commencement  of  the  action  was,  and,  for  the  one 
year  next  preceding,  has  been  in  his  possession,  or  in  the  possession  of  him- 
self and  those  from  whom  he  derives  his  title,  either  as  sole  tenant,  or  as  joint 
tenant,  or  tenant  in  common  with  others. 


488      TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY. 
Art.  2.     When  Action  Maintained,  and  What  Must  be  Alleged. 

3.  That  the  defendant  unjustly  claims  an  estate  or  interest  or  easement 
therein,  or  a  lien  or  incumbrance  thereupon  of  the  character  specified  in  the  last 
section. 

The  complaint  must  describe  the  property  as  prescribed  in  section  1511  of  this 
act.  The  demand  for  judgment  may  be  to  the  effect  that  the  defendant  and 
every  person  claiming  under  him  be  barred  from  all  claim  to  an  estate  in  the 
property  described  in  the  complaint,  or  from  all  claim  to  an  interest  or  easement 
therein,  or  a  lien  or  incumbrance  thereupon,  of  the  character  specified  in  the  last 
section,  or  it  may  combine  two  or  more  of  said  demands  with  other  demands  for 
appropriate  relief. 

§  1650.  [Am'd,  1891.]     This  article  applies  to  corporations. 

An  action  may  be  maintained,  as  prescribed  in  this  article,  by  or  against  a 
corporation,  or  by  or  against  an  unincorporated  association,  as  if  it  was  a  natural 
person,  or  such  an  action  may  be  maintained  by  or  against  the  receiver  or  other 
successor  of  any  such  corporation  or  association. 

Section  1638  was  amended  in  1891  so  as  to  reduce  the  time  of 
adverse  possession  to  one  year  instead  of  three  as  under  the  sec- 
tion as  it  stood  before  that  time.  It  also  extended  the  action  to 
undivided  and  other  interests,  and  struck  out  the  exception  of 
infants  and  others  as  defendants,  thus  rendering  obsolete  the 
holding  in  Wcilcrv.  Nevibach,  114  N.  Y.  36,  22  St.  Rep.  171,  16  Civ. 
Pro.  R.  375,  affirming  47  Hun,  166,  13  St.  Rep.  451,  13  Civ.  Pro.  R. 
380.  That  action  could  not  be  maintained  against  an  infant, 
under  the  provisions  of  the  Code  as  it  stood  at  the  time  it  was 
commenced. 

The  possession  of  a  tenant  is  the  possession  of  his  landlord,  and 
a  person  in  the  possession  of  land  by  his  tenant  may  maintain  an 
action  to  compel  the  determination  of  an  adverse  claim  to  it. 
Kingv.  Townscnd,  78  Hun,  380,  29  Supp.  181. 

Where  an  unrecorded  deed  of  land  has  been  lost,  an  action  in 
equity  is  maintainable  to  compel  the  grantor  or,  after  his  death, 
those  representing  his  title,  to  execute  another  deed  so  as  to 
clothe  the  grantee  with  the  record  title.  Such  an  action  is  not 
dependent  upon  the  provisions  of  the  Code  in  reference  to  the 
determination  of  adverse  claims  to  real  estate  and  authorizing 
actions  in  cases  specified  to  procure  a  conveyance,  but  has  its 
sanction  in  the  general  jurisdiction  of  a  court  of  equity.  Kent 
V.  Ciiiircli  of  St.  Michael,  136  N.  Y.  10. 

Where  the  period  between  the  date  of  the  deed  and  the  com- 
mencement of  the  action  was  less  than  the  statutory  period,  and 
the  husband  of  plaintiff  had  been  in  possession  for  many  years, 
defendants  moved  to  dismiss  the  complaint  on  the  ground  that 


TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY.      489 

Art.  2.     When  Action  Maintained,  and  What  Must  be  Alleged. 

plaintiff  had  not  been  in  possession  the  length  of  time  required 
by  the  Code ;  Jicld,  that  the  motion  was  properly  denied,  as  the 
plaintiff  and  the  one  whose  estate  she  held  had  been  in  posses- 
sion for  the  required  time,  which  was  all  that  was  requisite ;  that 
it  was  not  essential  that  the  possession  for  that  period  should 
have  been  adverse  to  defendant's  claim.  Diefcndorf  v.  Dicfen- 
dorf,  132  N.  Y.  lOO;  Dull  v.  Rohr,  13  Misc.  530.  To  maintain 
an  action  under  the  provisions  of  §  1638,  plaintiff^must  show  pos- 
session under  some  claim  of  title.     Bohn  v.  Hatch,  133  N.  Y.  64. 

This  is  an  action  given  to  the  holder  of  the  legal  title  and  has 
no  reference  to  an  action  for  similar  relief  which  proceeds  upon 
equitable  grounds.  Center  v.  Weed,  63  Hun,  560,  44  St.  Rep. 
463.  Where  the  plaintiff  in  an  action  under  §  1638  has  died 
after  a  judgment  against  him  had  been  vacated,  the  action  may 
be  revived  against  a  devisee  of  the  subject-matter  of  the  suit,  and 
he  may  be  compelled  to  proceed  therein.  Such  devisee  takes 
subject  to  all  the  incumbrances  upon  his  devise  and  cannot  com- 
plain that  the  order  of  substitution  deprives  him  of  the  right  to  a 
new  trial  to  which  he  would  be  entitled  under  the  Code  if  the 
action  had  not  been  commenced  by  his  -predecessor.  Higgins  v. 
Mayor  of  New  York,  45  St.  Rep.  696. 

Where  plaintiff  was  the  owner  of  property  described  in  the  com- 
plaint and  defendant  claimed  she  was  divested  of  that  title  by  deed 
made  by  the  sheriff,  and  the  plaintiff  claims  such  deed  was  void, 
the  action  comes  within  §  1638  of  the  Code.  Gihnan  v.  Tucker, 
13  Supp.  804,  citing  Place  v.  Riley,  98  N.  Y.  i. 

In  an  action  to  compel  the  determination  of  adverse  claims  to 
real  property  of  which  plaintiff  is  in  possession  claiming  to  own 
the  fee,  an  injunction  pendente  lite  will  be  granted  against  defend- 
ants who  have  brought  ejectment  suits  against  plaintiff,  affecting 
such  lands,  restraining  all  proceedings  in  all  the  suits  last  named 
until  the  final  determination  of  the  action.  Cuthbert  v.  Chajwet, 
37  St.  Rep.  564,  affirmed,  37  St.  Rep.  941. 

The  proceeding  is  in  no  way  governed  by  the  principles  of  the 
common  law,  and  to  give  the  court  jurisdiction  the  proceeding 
must  come  within  the  provisions  of  the  statute,  and  the  facts 
bringing  it  within  the  statute  must  appear  by  the  complaint. 
Bailey  v.  Sout/nvick,  6  Lans.  356;  Austin  v.  Goodrich,  49  N.  Y. 
266.  The  complaint  must  allege  that  the  defendants  unjustly 
claim  title  to  the  premises  in  question,  and  must,  in  its  prayer  for 


.490      TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY. 


Art.  2.     When  Action  Maintained,  and  What  Must  be  Alleged. 


judgment,  notify  defendants  that  unless  they  appear  and  assert 
their  claim  they  will  be  forever  barred.  A  complaint  alleging  a 
doubtful  will,  and  asking  its  construction,  is  not  enough.  Bailey 
V.  Briggs,  56  N.  Y.  407.  The  claim  sought  to  be  determined 
must  be  adverse  to  that  of  the  party  in  possession.  Onderdonkv. 
Mott,  34  Barb.  106.  It  is  said,  however,  that  one  seized  of  a 
vested  remainder  in  fee,  the  possession  being  in  the  tenant  for 
life,  can  take  the  proceeding.  Barron  v.  Martcnse,  4  Alb.  L.  J. 
93.  The  possession  must  be  such  as  would  enable  the  adverse 
party  to  maintain  ejectment  founded  on  the  fact  alone;  the  rule 
that  possession,  once  shown,  is  presumed  to  continue,  is  not  sufifi- 
cient.  Cleveland  v.  Crawford,  7  Hun,  616.  Legal  title,  with 
constructive  possession,  is  not  enough.  Van  Wagener  v.  Bots- 
ford,  13  Week.  Dig.  381.  An  actual  entry,  a  possession  in  fact, 
as  distinguished  from  a  possession  in  law,  or  constructive  posses- 
sion, is  required.  Churchill  v.  Onderdonk,  59  N.  Y.  134.  Plain- 
tiff must  have  had  actual  possession  for  the  three  years  preceding 
the  commencement  of  the  action,  and  it  cannot  be  maintained 
where  during  part  of  that  time  the  land  had  been  unfenced  and 
vacant.  Boyhton  v.  Wheeler,  6\  N.  Y.  521.  One  in  possession 
for  three  years  may  maintain  the  action  and  compel  the  defend- 
ant to  prove  his  title,  but  if  plaintiff  shows  only  possession  under 
an  unfounded  claim,  evidence  of  possession  and  occupation  by 
defendant,  prior  to  plaintiff's  entry,  is  a  good  defence.  Ford  v. 
Belmont,  69  N.  Y.  567.  Plaintiff  is  not  required  to  show  any- 
thing more  than  three  years'  possession  under  his  title.  If  the 
defendant  has  a  title,  he  is  bound  to  produce  and  prove  it.  Car- 
nardv.  Siinms,  42  Barb.  304. 

Actual  possession  under  claim  of  title  is  sufficient  to  enable  a 
party  to  maintain  the  action.  Schroeber  v.  Gurney,  10  Hun,  413. 
Where  plaintiff  had  been  in  possession  during  a  short  period, 
when  a  purchaser  at  a  void  tax  sale  entered  before  time  to  redeem 
had  expired,  held,  such  wrongful  entry  did  not  interrupt  plain- 
tiff's actual  po.ssession,  required  for  the  purposes  of  sustaining  the 
action.  Donahue  v.  O'Connor,  45  Supr.  Ct.  278.  A  tax  title  is 
within  the  statute.  Burnham  v.  Onderdonk,  41  N.  Y.  425.  The 
statute  does  not  include  setting  aside  a  conveyance  upon  the 
ground  of  the  plaintiff's  incompetency,  nor  adjusting  the  rights 
of  parties  under  a  contract  to  convey.  Peck  v.  Broivn,  2  Robt. 
119;  Bridges  v.  Miller,  2  Duer,  683.     The  action  was  not  author- 


TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY.      49 1 


Art.  2.     When  Action  Maintained,  and  What  Must  be  Alleged. 


ized  against  infant  defendants  before  the  amendment  to  §  1638. 
Bailey  v.  Briggs,  56  N.  Y.  407.  Where,  in  an  action  brought 
under  §  1638,  it  is  shown  that  there  is  danger  that  the  possession 
of  the  plaintiff  will  be  unlawfully  molested  or  disturbed  during 
the  progress  of  the  action,  an  injunction  may  be  granted  restrain- 
ing; defendant  from  such  interference.  Stannn  v.  Bostwick,  30 
Hun,  70. 

It  is  not  necessary,  in  order  to  state  a  cause  of  action  under  this 
article,  that  the  plaintiff  should  allege  in  the  complaint  that  he  is 
the  sole  owner  in  fee  of  the  premises  therein  described.  Sole 
ownership  is  fairly  implied  from  an  allegation  that  the  plaintiff  is 
the  owner  in  fee,  and  the  allegation  that  plaintiff  has  been  in  pos- 
session of  the  land  since  he  acquired  his  title  is  equivalent  to  an 
allegation  that  he  has  been  in  possession  as  sole  tenant,  and  where 
the  complaint  contained  an  allegation  "that  the  defendant  un- 
justly claimed  an  estate  or  interest  therein  adverse  to  that  of 
plaintiff,  to  wit,  the  adverse  claim  that  he  is  seized  of  said  premi- 
ses in  fee,"  the  allegation  was  not  a  conclusion,  but  an  allegation 
of  fact,  and  was  sufficient  compliance  with  the  provisions  of  subd, 
3,  of  §  1638.  King  v.  Toxvnscnd,  78  Hun,  380,  29  Supp.  181, 
reversing  23  Civ.  Pro.  R.  326. 

In  order  to  authorize  an  action  of  this  character  it  must  appear 
that  a  claim  was  made  by  the  defendant  before  the  action  was 
commenced,  and  the  assertion  of  a  claim  in  the  defendant's 
answer  is  not  sufficient  unless  the  answer  admits  that  the  defend- 
ant claimed  an  estate  in  the  land  prior  to  the  commencement  of 
the  action.  It  is  not  a  sufficient  allegation  in  the  complaint  that 
the  defendant  unjustly  claims  an  estate  in  the  land,  to  simply 
allege  the  matter  in  those  words  without  stating  any  facts  in  sup- 
port of  such  allegation.  Brown  v.  Tccl,  59  Hun,  91,  35  St.  Rep. 
507,  affirmed,  without  opinion,  128  N.  Y.  678. 

A  complaint  in  an  action  brought  to  compel  the  determination 
of  a  claim  to  real  property  alleging  seizin  in  the  plaintiff  and 
actual  possession  in  the  premises  for  upwards  of  three  years  pre- 
vious to  the  commencement  of  the  action,  will  bring  the  case 
within  the  provisions  of  §§  1638  and  1639.  Pearcc  v.  Moore,  23 
St.  Rep.  196;  s.  C.  T14  N.  Y.  256. 

A  complaint  that  alleges  that  "the  defendant  unjustly  claimed 
an  estate  in  the  premises  in  fee,  for  life  or  for  a  term  of  years, 
not  less  than  ten  years,  or  in  reversion  or  remainder  by  virtue  of  a 


492      TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY. 


Art.  2.      When  Action  Maintained,  and  What  Must  be  Alleged. 


lease  or  conveyance  made  by  a  party  named,  which  lease  or  con- 
veyance and  all  rights  thereunder,  the  defendant  claims  to  own," 
was  held  sufficient.  Phillips  v.  Rome,  etc.  R.  R.  Co.  30  St.  Rep. 
41.  The  complaint  must  show  the  facts  bringing  the  case  within 
the  statute.  Austin  v.  Goodrich,  49  N.  Y.  266;  Bailey  v.  Briggs, 
56  N.  Y.  407.  The  proceedings  are  governed  by  the  same  rule 
as  other  actions.  Ford  v.  Belmont,  35  Supr.  Ct.  135,  affirmed,  69 
N.  Y.  567.      See  Hager  v.  Hager,  38  Barb.  92. 

Complaint  to  Compel   the   Determination  of  Claim  to  Real 

Property. 

SUPREME  COURT. 


EDWARD  STAMM 

agst. 

GEORGE  H.  BOSTWICK. 


122  N.  Y.  48. 


The  plaintiff  complains  of  the  defendant,  and  alleges  that  hereto- 
fore, and  on  or  about  the  27th  day  of  October,  1867,  one  Eliza 
Anderson  died  in  the  city  of  New  York,  seized  and  possessed  in  fee 
simple    absolute   of  the  following   described    lands   and    premises: 

(Here  insert  description.) 

That  the  said  Eliza  Anderson  left  a  last  will  and  testament  dated 

August  22,  1866,  which  was  duly  admitted  to   probate,  and  recorded 

in  the  office  of  the  surrogate  of  the  county  of  New  York,  in  Book 

No.    172   of  Wills,   at  page   223,  on  the   7th  day  of  January,   1868, 

which  will  was  executed  in  due  form  of  law  to  pass  the  title  to  real 

estate,  and  in  and  by  which  will  the  said  testatrix  devised  the  premises 

hereinabove  described  to  her  adopted  daughter  Eliza  Anderson,  for 

the  term  of  her  natural  life,  and  from  and   immediately  after  her 

death,  unto  the  lawful  issue  of  the  said  devisee,  Eliza  Anderson,  her 

surviving,  his,  her  or  their  heirs  and  assigns  forever;  that  the  said 

Eliza  Anderson,  immediately  upon  the  death  of  the  said  testatrix, 

entered  into  possession  of  the  said  land  and  premises,  and  continued 

in  possession  thereof  as  such  devisee  and  life  tenant  until  the  nth 

day  of  February,  1875,  when  she  died;  that  during  the  lifetime  of 

the  said  devisee,  Eliza  Anderson,  and  on   the  2 2d  day  of  January, 

1868,  she  intermarried  with    the    plaintiff,   and    thereafter,  and  on 

the  6th  day  of  January,  1869,  gave  birth  to  a  lawfully  begotten  child, 

Elizabeth   Stamm,  and  upon  her  death,    as  aforesaid,  left  the  said 

Elizabeth,   her    sole  issue,   her   surviving;    that  the  said  Elizabeth 

Stamm   thereupon   entered  into   possession   of    the    said  lands  and 

premises,  and  continued  in  possession  thereof,  as  owner  in  fee  simple 

absolute,  under  and  by  virtue  of  the  aforesaid  devise,  until  the  loth 

day  of  September,   1881,  when    she  died  seized  thereof,   intestate, 

unmarried,  and  leaving  this  plaintiff,  her  father,  her  surviving  and  her 


TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY.      493 


Art.  3.     Proceedings  after  Issue  Joined. 


sole  heir  at  law;  that  this  plaintiff  thereupon  entered  into  possession 
of  the  said  lands  and  premises  as  such  sole  heir  at  law  of  the  said 
Elizabeth  Stamm,  and  has  ever  since  continued,  and  now  is  in  pos- 
session thereof;  that  the  plaintiff  has  an  estate  in  said  lands  and 
premises  in  fee-simple  absolute,  as  the  sole  heir  of  the  said  Elizabeth 
Stamm,  deceased ;  that  he  is  now,  and  he  and  those  whose  estate  he 
has,  and  from  whom  he  derives  his  title  as  aforesaid,  have  been  for 
more  than  three  years  last  past  in  the  actual  possession  of  said  lands 
and  premises,  claiming  the  same  in  fee;  that  the  above-named 
defendant  unjustly  claims  an  estate  in  fee,  in  and  to  the  said  lands 
and  premises  and  molests  and  interferes  with  the  quiet  enjoyment 
and  possession  of  the  same,  by  this  plaintiff.  Wherefore,  the  plain- 
tiff demands  judgment  against  the  said  defendant,  that  he  and  every 
and  all  persons  claiming  under  him  be  forever  barred  from  all 
claim  to  any  estate  of  inheritance,  or  freehold,  or  for  a  term  of 
years,  not  less  than  ten,  in  possession,  reversion,  or  remainder  in 
the  lands  and  premises  hereinabove  described,  and  be  forever  re- 
strained and  enjoined  from  molesting  or  in  any  way  interfering  with 
the  quiet  enjoyment  and  possession  thereof  by  this  plaintiff,  and  that 
plaintiff  have  his  costs  of  the  action. 

COUDERT  BROTHERS, 

Plaintiff's  Attorneys. 

ARTICLE    III. 
Proceedings  After  Issue  Joined.    J§  1640,  1641,  1642, 1643. 

^  1640.  Proceedings  when  defendant  denies  plaintiff's  title. 

If  the  defendant,  in  his  answer,  puts  in  issue  the  matters  specified  in  subdi- 
vision second  of  the  last  section,  and  succeeds  upon  that  defence,  final  judgment 
must  be  rendered  in  his  favor,  dismissing  the  complaint,  and  awarding  to  him 
costs  against  the  plaintiff. 

i^  1641.  [Am'd,  1891.]     Id.  ;  when  he  pleads  title. 

The  defendant  may,  in  his  answer,  either  with  or  without  the  defence  speci- 
fied in  the  last  section,  set  forth  facts,  showing  that  he  has  an  estate  in  the 
property  or  any  part  thereof,  adverse  to  the  plaintiff,  in  fee,  or  for  life,  or  for  a 
term  of  years  not  less  than  ten,  in  possession,  reversion,  or  remainder,  as  in  a 
complaint  for  the  same  cause  of  action;  or  the  defendant  may  set  forth  facts 
showing  that  he  has  an  interest  or  an  easement  in,  or  a  lien  or  incumbrance 
upon,  said  property;  and  thereupon  he  may  demand  that  the  complaint  be  dis- 
missed, or  any  judgment  to  which  he  would  be  entitled  in  an  action  brought  by 
him  to  recover  that  estate  in  said  property,  or  to  enforce  in  any  manner  the  in- 
terest or  easement  therein,  or  the  lien  or  incumbrance  thereupon  which  he 
asserts;  or  he  may  combine  any  two  or  more  of  said  demands. 

g  1642.  [Am'd,  1891.]     Proceedings  the  same  as  in  ejectment. 

Where  an  issue  of  fact  is  joined  in  an  action  brought  as  prescribed  in  this 
article,  unless  the  defendant  merely  demands  that  the  complaint  be  dismissed, 
if  the  defendant  claims  an  estate  in  said  property,  the  subsequent  proceedings, 
including  the  trial,  judgment  and  execution,  are  the  same  as  if  it  was  an  action 


494   TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY 


Art.  3.     Proceedings  after  Issue  Joined. 


of  ejectment,  except  as  otherwise  expressly  prescribed  in  this  title;  if  the  de- 
fendant claims  an  interest  or  easement  in,  or  a  lien  or  incumbrance  upon,  said 
property,  the  subsequent  proceedings  are  the  same  as  if  it  was  an  action  brought 
by  the  defendant  to  establish  or  enforce  the  said  interest,  easement,  lien  or  in- 
cumbrance, and  the  court  may  award  any  appropriate  relief  except  as  otherwise 
expressly  prescribed  in  this  title. 

§  1643.  Proceedings  when  defendant  claims  in  reversion  or  remainder. 

Where  the  defendant  claims  the  property  in  question,  or  any  part  thereof,  by 
virtue  of  an  estate  in  remainder  or  reversion,  he  need  not  establish  a  right  to 
the  immediate  possession  thereof;  but  where  the  verdict,  report,  or  decision 
finds  that  he  has  such  an  estate,  it  must  specify  the  time  when,  or  the  con- 
tingency upon  which,  he  will  be  entitled  to  possession;  and  final  judgment  to 
that  effect  must  be  rendered  accordingly,  without  damages.  In  such  a  case,  an 
execution  for  the  delivery  of  the  possession  of  the  property  may  be  issued  upon 
the  judgment;  but  only  by  the  special  order  of  the  court,  made  upon  an  applica- 
tion by  the  defendant,  or  a  person  claiming  under  him,  and  satisfactory  proof 
that  the  time  has  arrived  when,  or  the  contingency  has  happened  upon  which, 
the  applicant  is  entitled  to  possession  by  the  terms  of  the  judgment. 

The  same  defences  may  be  set  up  to  defeat  the  right  of  plaintiff 
to  relief  as  in  other  actions.  Hammond  v.  Tillotson,  18  Barb. 
332;  Ford  V.  Belmont,  35  Supr.  Ct.  135;  S.  C.  69  N.  Y.  567; 
Peck  V.  Broivn,  26  How.  350. 

In  an  action  to  determine  a  claim  to  real  property,  if  the  plain- 
tiff fails  to  prove  possession,  the  defendant  may  have  the  com- 
plaint dismissed,  but  in  order  that  he  may  have  the  judgment  in 
his  own  favor  he  must  prove  his  own  title.  Want  of  title  in  the 
plaintiff  is  not  sufficient.  Benson  v.  Toivnsend,  7  N.  Y.  Supp. 
162;  S.  C.  26  St.  Rep.  644. 

In  an  action  to  compel  the  determination  of  claims  to  real  prop- 
erty, of  which  plaintiff  is  in  possession,  claiming  to  own  the  fee, 
an  injunction  will  be  ^X2^\\.&di  pendente  lite  against  defendants  who 
have  brought  ejectment  suits  against  plaintiff's  land,  restraining 
all  proceedings  in  any  of  the  suits  until  the  final  determination  of 
the  action  to  determine  the  claim.  Cuthbert  v.  Chaiivet,  37  St. 
Rep.  564,  affirmed,  37  St.  Rep.  941. 

Different  claimants  of  separate  parcels  all  denying  plaintiff's 
rights  on  the  same  ground,  and  claiming  title  from  the  same 
source,  may  be  united  as  defendants.  Fisher  v.  Hepburn,  48 
N.  Y.  41.  When  plaintiffs  proved  a  deed  of  the  premises  to 
their  ancestor,  his  decease  intestate,  and  that  they  were  his  heirs 
at  law,  but  that  the  premises  were  vacant,  it  was  held  not  to  estab- 
lish or  give  ground  to  presume  an  actual  occupation.      Churchill 


I 


TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY.      495 


Art.  4.     Judgment  and  its  Effect. 


V.  Onderdonk,  59  N.  Y.  134.  Where  plaintiff  only  shows  posses- 
sion under  an  unfounded  claim,  evidence  of  actual  possession  and 
occupation  by  defendant,  prior  to  the  entry  of  defendant,  is  a 
sufficient  defence.  Ford  v.  Belmont^  69  N.  Y.  567.  The  same 
right  to  amendment  of  pleadings  exists  as  in  other  actions. 
Broivn  v.  Leigh,  49  N.  Y.  78.  The  court  also  has  power  to  open 
a  judgment  entered  on  failure  to  answer.  Mann  v.  Provost,  3 
Abb.  446;  Roscvelt  v.  Giles,  7  Hill,  166;  Williams  v.  Cox,  6 
Wend.  519.  In  such  an  action  proof  that  the  premises  were 
assessed  to  the  plaintiff  as  owner  is  admissible  as  tending  to  show 
a  claim  thereto  on  his  part,  and  the  jury  may  determine  whether 
defendant  has  title  to  the  whole  or  part  of  the  premises.  Hager 
V.  Hager,  38  Barb.  92. 

If  defendant  has  a  title  he  is  bound  to  produce  and  prove  it. 
Plaintiff  is  not  required  to  show  anything  beyond  possession  as 
required  by  the  statute,  if  it  be  put  in  issue  by  the  answer;  as  to 
title,  defendant  is  the  actor  and  is  bound  to  prove  it.  Bar- 
nard V.  Sims,  42  Barb.  304. 

Where  both  a  lessor  and  a  lessee  of  the  corporation  were  made 
defendants  as  having  a  claim,  and  both  appeared  and  neither  dis- 
claimed by  their  pleadings  or  in  any  manner  on  the  trial,  and  no 
motion  was  made  to  dismiss  the  complaint,  defendant  cannot 
urge  there  was  nothing  to  show  that  the  lessee  company  made  a 
claim  against  plaintiff,  and  that,  therefore,  as  to  it  the  complaint 
should  have  been  dismissed.  Philips  v.  R.  W.  &  O.  R.  R.  Co.  30 
St.  Rep.  41,  9  Supp.  799. 

Where  defendant  by  an  answer  simply  denies  plaintiff's  posses- 
sion and  not  his  title,  and  does  not  allege  title  or  possession  in 
himself,  he  is  not  entitled  to  a  judgment  for  afifirmative  relief. 
Kingv.  Townsend,  78  Hun,  380,  29  Supp.  181. 


ARTICLE    IV. 
Judgment  and  its  Effect.     §§  1644,  1645,  1646. 

§  1644.  Judgment  awarding  defendant  possession,  etc. 

Where  a  final  judgment,  in  favor  of  the  defendant,  determines  that  he  is 
entitled  to  the  immediate  possession  of  the  property,  it  must  award  him  posses- 
sion accordingly.  The  final  judgment  must  also  award  to  him  his  damages  for 
the  withholding  of  his  property,  as  in  an  action  of  ejectment. 


496      TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALITY. 

Art.  4.     Judgment  and  its  Effect. 

§  1645.  [Am'd,  1891.]  Judgment  for  plaintiff. 

Final  judgment  for  the  plaintiff  must  be  to  the  effect  that  the  defendant,  and 
every  person  claiming  under  him,  by  title  accruing  after  the  filing  of  the  judg- 
ment-roll, or  of  the  notice  of  the  pendency  of  the  action,  as  prescribed  in  article 
ninth  of  this  title,  be  forever  barred  from  all  claim  to  any  estate  of  inheritance, 
or  for  life,  or  for  a  term  of  years  not  less  than  ten,  in  the  property;  or  such 
judgment  must  be  that  the  defendant  and  every  person  claiming  under  him,  as 
above  stated,  be  forever  barred  from  all  claim  to  any  interest  or  easement  in,  or 
lien  or  incumbrance  upon,  the  said  property,  of  any  kind  or  nature  whatsoever, 
or  of  any  particular  interest,  easement,  lien  or  incumbrance  specified  in  said 
judgment ;  and  the  court  may  direct  any  instrument  purporting  to  create  any 
such  interest,  easement,  lien  or  incumbrance  to  be  delivered  up  or  to  be  canceled 
of  record;  or  two  or  more  of  said  forms  of  judgment  may  be  awarded  in  the 
same  action.  If  such  a  judgment  is  taken  upon  the  defendant's  default  in 
appearing  or  pleading,  it  shall  not  award  costs  to  either  party,  unless  it  be 
taken  upon  a  default  in  answering,  after  the  decision  of  a  demurrer  to  the 
complaint. 

§  1646.  [Am'd,  1891.]  Effect  of  judgment. 

A  final  judgment  in  favor  of  either  party,  in  an  action  brought  as  prescribed 
in  this  article,  is  conclusive  against  the  other  party,  as  to  the  title  established  in  the 
action;  and  also  against  every  person  claiming  from,  through,  or  under  that 
party,  by  title  accruing  after  the  filing  of  the  judgment-roll,  or  of  the  notice  of 
the  pendency  of  the  action,  as  prescribed  in  article  ninth  of  this  title.  A  new 
trial  of  said  action  after  judgment  shall  not  be  granted  as  a  matter  of  right,  but 
the  court  may,  in  its  discretion,  in  the  interest,  of  justice,  grant  a  new  trial  upon 
an  application  made  by  any  party  within  one  year  after  said  judgment.  But 
where  a  defendant  is  an  infant,  an  idiot,  a  lunatic,  an  habitual  drunkard,  or 
imprisoned  on  a  criminal  charge  or  in  execution  upon  conviction  of  a  criminal 
offence  for  a  term  less  than  life,  the  said  defendant  shall  have  the  right,  within 
one  year  after  his  disability  is  terminated,  to  apply  for  and  obtain  a  new  trial  of 
said  action,  and  the  representatives  of  such  a  defendant  shall  have  the  same 
right  within  one  year  after  the  death  of  said  defendant,  if  such  death  occurs 
while  the  disability  continues.  Upon  any  new  trial  of  an  action,  brought  as 
prescribed  in  this  article,  the  record  of  the  evidence  given  upon  the  previous 
trial  may  be  again  offered  to  the  court  by  either  party,  and  may  be  received  in 
evidence,  in  case  the  same  evidence  cannot  be  again  procured.  The  courts  may 
make  such  rules  and  orders  as  to  preserving  the  record  of  the  evidence  given  in 
such  actions  and  perpetuating  the  proofs  produced  therein,  either  with  or  with- 
out the  awarding  of  any  other  relief  to  the  party  whose  proofs  are  so  perpetu- 
ated, as  shall  be  necessary  or  proper,  and  may  embrace  such  directions  in  the 
judgment. 

Section  1645  modifies  the  rule  laid  down  in  Davis  v.  Read,  65 
N.  Y.  566.  A  judgment  after  trial  is  conclusive,  and  the  parties 
are  limited  to  the  ordinary  practice  of  the  court  as  to  new  trials. 
Malin  v.  Rose,  12  Wend.  258.  It  was  also  conclusive  against  de- 
fendant, and  all  claiming  under  him,  by  title  accruing  subsequent 


TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY.      497 


Art.  5.      Proceedings  when  Against  Woman  Claiming  Dower. 

to  filing  of  the  notice  (see  language  of  present  section).     Malto7i- 
ncr  V.  Diinmick^  4  Barb.  366. 

A  defendant  who  claims  no  interest,  in  order  to  avoid  liability 
for  costs,  should  appear  and  disclaim ;  by  so  doing,  the  burden  is 
thereupon  thrown  on  plaintiff  of  establishing  the  fact  that  defend- 
ant has  claimed,  and  upon  his  failure  to  do  so  the  complaint 
should  be  dismissed  as  to  such  defendant,  with  costs.  Davis  v. 
Read,  65  N.  Y.  566.  If  the  complaint  is  dismissed,  the  defend- 
ant is  entitled  to  costs  as  matter  of  right.  Tanner  v.  Tibbits,  19 
Wend.  133;  Rugen  v.  Collins,  8  Hun,  384.  The  court  has  juris- 
dicton  of  the  question  of  extra  allowance.  Fisher  v.  Hepburn,  48 
N.  Y.  41.  Where  the  referee  failed  to  find  the  value  of  the  prop- 
erty, the  clerk  has  no  power  to  receive  evidence  to  determine  such 
value  as  a  basis  for  an  extra  allowance.  Newton  v.  Reid^  24  Week. 
Dig.  472.  The  provisions  of  §  3252,  relating  to  extra  allowance, 
relate  solely  to  an  action  under  these  sections,  when  it  provides 
for  an  allowance  in  an  action  to  compel  the  determination  of  a 
claim  to  real  property.      8  Civ.  Pro.  R.  214,  etc.,  note. 

ARTICLE    V. 

Proceedings  when   Against    Woman    Claiming  Dower. 

§§  1647,  1648,  1649. 

§  1647.  [Am'd,  1891.]     Action  to  determine  •widow's  dower. 

A  person  claiming,  as  owner,  an  estate  in  fee,  for  life,  or  for  years,  in  real 
property,  may  maintain  an  action  against  a  woman,  who  claims  to  have  a  right 
of  dower  in  the  whole  or  a  part  of  the  property,  to  compel  the  determination  of 
her  claim.  But  such  an  action  cannot  be  commenced  until  after  the  expiration 
of  four  months  after  the  death  of  defendant's  husband.  If  the  defendant  is 
under  any  of  the  disabilities  specified  in  the  last  section,  the  provisions  of  that 
section  relating  to  new  trials  and  to  perpetuating  proofs,  shall  apply  to  her  case. 

§  1648.  Proceedings,  if  plaintiff  admits  defendant's  claim. 

In  an  action  brought  as  specified  in  the  last  section,  if  the  complaint  admits 
the  defendant's  right  of  dower  in  the  property  described  therein,  or  any  part 
thereof,  it  must  demand  judgment  that  her  dower  be  admeasured.  In  that  case, 
if  the  defendant  does  not,  by  her  answer,  set  forth  facts  showing  that  she  is  en- 
titled to  a  greater  right  of  dower  or  another  estate  or  interest  in  the  property, 
than  is  so  admitted,  and  demand  judgment  therefor,  as  if  she  was  the  plaintiff 
in  an  action  for  dower,  the  court  must  render  an  interlocutory  judgment,  di- 
recting her  dower  to  be  admeasured,  with  or  without  damages  for  its  detention, 
as  in  an  action  for  dower.  The  subsequent  proceedings  are  the  same,  as  if  the 
defendant  had,  as  plaintiff,  recovered  an  interlocutory  judgment  in  an  action  for 
dower. 

[Special  Actions  —  32.] 


498      TO  COMPEL  DETERMINATION  OF  A  CLAIM  TO  REALTY. 


Art.  5.     Proceedings  when  Against  Woman  Claiming  Dower. 

§  1649.  Id. ;  when  defendant's  claim  is  denied. 

Where  the  plaintiff  insists,  in  his  complaint,  that  the  defendant  has  not  a 
right  of  dower  in  the  property,  he  must  demand  judgment  that  she  be  forever 
barred  from  such  a  claim.  In  that  case,  or  where  the  plaintiff  admits  a  right  of 
dower  in  the  defendant,  and  the  defendant  in  her  answer  demands  judgment 
for  a  greater  right  of  dower,  or  another  estate  or  interest  in  the  property,  than 
is  so  admitted,  the  provisions  of  this  article,  relating  to  an  action  to  compel  the 
determination  of  an  adverse  claim  in  fee,  or  for  life,  or  for  a  term  of  years  not 
less  than  ten,  apply  to  all  proceedings  subsequent  to  the  answer. 

Where  a  complaint  set  forth  that  defendant  was  the  wife  of  a 
person  who  died  seized  of  the  lands  of  which  plaintiff  is  seized  in 
fee,  subject  to  defendant's  dower,  while  not  setting  forth  facts 
sufficient  to  maintain  ejectment,  is  sufficient  for  the  purpose 
of  the  relief  asked  for,  that  defendant's  dower  be  admeasured 
and  set  off  to  her.  Lindon  v.  Doctsch^  40  Hun,  239,  24  Week. 
Dig.  167. 

In  an  action  to  partition  the  real  property,  the  wife  of  a  tenant 
in  common  was  made  a  party  defendant  and  his  share  alleged  in  the 
complaint  to  be  subject  to  her  inchoate  right  of  dower;  the  action 
was  held  not  to  be  such  as  is  contemplated  by  section  1647 
which  is  not  applicable  to  such  case.  DicJil  v.  Lambert^  9  Civ. 
Pro.  R.  267. 


CHAPTER   VI. 

WASTE.  * 

PAGE. 

Article  i.  What  constitutes  waste 499 

2.  By  whom  action    maintained.      Sees.    1652,    1653, 

1654,  1656 503 

3.  Against  whom  action  lies  and  defences.     Sec.  1651.  507 

4.  Injunction  to  restrain  waste.     Sec.  1681 508 

5.  Judgment.     Sec.  1655 511 

6.  Miscellaneous  provisions  as  to  waste.     Sees.  1657, 

1658,  1659 511 


Sections  of  the  Code  of  Procedure  and  Where  Found  in  this 

Chapter. 

SEC.                                                                                                                                                              ART.  PAGE. 

165 1.  Who  liable  to  action  for  waste 3  507 

1652.  Action  by  heir,  devisee,  or  grantor  of  reversion 2  503 

1653.  Id.;  by  ward  against  guardian 2  503 

1654.  Id. ;  by  grantee  of  real  property,  sold  under  execution 2  503 

1655.  Judgment  in  action  against  tenant  of  particular  estate 5  511 

1656.  Action  against  joint  tenant  or  tenant  in  common 2  503 

1657.  Id.;  interlocutory  judgment  for  partition 6  511 

1658.  Id.;  damages  to  be  deducted  from  defendant's  share 6  512 

1659.  View;  when  not  necessary;  when  and  how  made 6  512 

1681.   Defendant,  how  prevented  from  committing  waste 4  508 


ARTICLE    I. 

What  Constitutes  Waste. 

Waste  is  any  permanent  or  lasting  injury  done  or  permitted  to 
be  done  by  the  holder  of  the  particular  estate  to  the  inheritance 
or  to  the  prejudice  of  any  one  who  has  an  interest  in  the  inherit- 
ance.    Cooley  on  Torts,  392. 

Tenants  for  life  are  bound  not  to  commit  waste  or  destruction 
of  an  estate,  voluntary  or  permissive,  and  are  bound  to  take 
proper  care  so  as  to  prevent  deterioration  from  neglect  or  decay; 
other\vise  they  may  have  to  respond  in  damages  even  for  waste 

*Yoors  Essay  on  Waste,  London,  1863,  seems  to  be  the  only  text-book  ex- 
clusively devoted  to  the  subject.  See,  however,  American  and  English  En- 
cyclopedia of  Law,  title  "Waste." 

[499] 


500 


WASTE. 


Art.  I.     What  Constitutes  Waste. 


committed  by  a  stranger  and    may    be   stopped  by  injunction. 
Gerard's  Titles  to  Real  Estate,  page  137. 

Although,  under  the  Code,  the  former  technical  action  of  waste 
is  abolished,  the  general  provisions  of  the  Revised  Statutes  regard- 
ing such  former  suits  remain  in  force  and  apply  to  an  action  in 
the  nature  of  waste  brought  under  the  Code.  There  are  two 
kinds  of  actionable  waste,  either  "negligent  waste"  or  "wanton 
or  malicious  waste. "  The  action  for  either  kind  is  maintainable 
at  once  after  its  commission,  and  the  theory  of  the  action  is  to 
compel  the  wrong-doer  to  make  satisfaction  equivalent  to  a  restora- 
tion of  the  premises  to  their  previous  condition.  The  inquiry 
is  as  to  the  injury  to  the  reversion,  and  good  faith  on  the  tenant^ 
part  is  no  defence  where  the  act  amounts  to  waste.  Pjirton  v. 
Watson,  19  St.  Rep.  6,  2  N.  Y.  Supp.  661. 

The  article  relating  to  waste  is  a  revision  of  the  statute  on  that 
subject,  omitting  that  portion  relating  only  to  certain  matters  of 
practice ;  the  balance  has  been  consolidated  and  rearranged. 
Under  the  statute,  the  action  being  penal  in  its  character,  the 
plaintiff  was  held  to  strict  proof.  Carrier  v.  Ingalls,  12  Wend. 
70.  Waste  is  whatever  does  a  lasting  damage  to  the  freehold  or 
inheritance.  AlcCaj  v.  Wait,  51  Barb.  225;  Jacks  v.  Brownson, 
7  Johns.  227;  McGregor  v.  Brozun,  10  N.  Y.  114;  Purton  v.  Wat- 
son, 19  St.  Rep.  6.  Certain  acts  are  injurious/rr  j^r  to  the  inherit- 
ance, as,  for  instance,  the  cutting  of  timber.  AIcGregor  v. 
Brown,  10  N.  Y.  114.  It  is  said  in  Sarlcs  v.  Sarles,  3  Sandf.  Ch. 
601,  that  cutting  any  timber  trees  is  waste.  The  rule  laid  down 
in  Robinson  v.  Kiuic,  70  N.  Y.  147,  is  that  felling  of  trees  for  sale 
by  a  tenant  for  life,  to  the  injury  of  a  reversion,  is  waste.  A  ten- 
ant cannot  cut  timber  for  selling  or  just  before  the  expiration  of 
his  lease.  Kidd  v.  Dennison,  6  Barb.  9.  It  is  waste  for  a  tenant 
to  cut  wood  to  burn  brick  for  sale,  where  he  has  covenanted  not 
to  commit  waste  of  wood  or  timber,  or  not  to  cut  down  or  carry 
away  more  than  is  actually  used  on  the  farm.  A  tenant  may  cut 
down  so  much  timber  as  may  be  necessary  for  fuel,  but  not  to 
carry  off  for  sale  or  use  elsewhere.  Rutherford  w.  Aiken,  2  T.  & 
C.  281  ;    Van  Deusen  v.   Young,  29  N.  Y.  9. 

In  parts  which  are  new  and  covered  with  forest  the  tenant  has 
been  allowed  to  cut  and  sell  timber  for  the  purpose  of  fitting  the 
land  for  cultivation.  Jackson  w.  Broivnson,"]  Johns.  227;  Harder 
V.  Harder,  26  Barb.  409;  Kidd  v.  Deniiison,  6  Barb.  9.     Where 


WASTE.  501 

Art.  I.     What  Constitutes  Waste. 


the  tenant  has  the  right  to  cut  in  the  exercise  of  good  husbandry, 
any  encroachment  on  what  should  be  left  as  a  provision  for  fire- 
wood and  refuse  is  waste.  People  v.  Davison,  4  Barb.  109.  Cut- 
ting and  carrying  away  timber  from  his  ward's  land  by  a  guardian 
is  waste  unless  it  is  required  for  the  repair  of  fences  or  buildings, 
or  unless  good  husbandry  requires  its  removal.  Terry  v.  Black, 
I  T.  &  C.  42;  S.  C.  58  N.  Y.  185.  In  considering  whether  trees 
are  ornamental  on  the  question  of  waste  it  is  important  to  con- 
sider whether  they  have  been  treated  as  such  by  the  owner  of  the 
premises.  Hazvley  v.  Woolverton,  5  Paige,  522.  The  English 
doctrine  with  regard  to  waste  is  said  to  be  now  modified,  and  the 
question  is,  was  it  good  husbandry  and  justified  by  the  usage  of 
the  place.  Kidel  v.  Dennison,  6  Barb.  9;  Sarles  v.  Sarles,  3 
Sandf.  Ch.  601  ;  McGregor  v.  Brozvn,  10  N.Y.  1 14.  Waste  is  an 
improper  destruction,  or  material  alteration,  or  devastation  of  the 
freehold,  or  of  other  things  forming  an  essential  part  of  it,  done 
or  suffered  by  a  person  rightfully  in  possession  as  tenant,  or  hav- 
ing but  a  partial  estate,  like  a  mortgagor.  It  is  not  waste  for  a 
tenant  of  nursery  grounds,  entering  subsequent  to  a  mortgage,  to 
remove  and  sell  in  good  faith  and  in  the  usual  course  of  business 
growing  nursery  stock,  if  done  before  foreclosure  is  begun,  and 
not  in  apprehension  of  foreclosure,  or  for  the  purpose  of  injury  to 
the  freehold  or  the  security,  nor  to  continue  to  do  so  after  fore- 
closure begun  if  a  plaintiff  does  not  obtain  the  appointment  of  a 
receiver.  Hamilton  v.  Austin,  36  Hun,  138.  Cutting  firewood 
for  men  working  on  farm  is  said  in  3  Sandf.  Ch.  601,  siipra,  to  be 

waste. 

No  title  to  timber  can  be  acquired  as  against  a  mortgagee  by- 
wrongful  and  fraudulent  acts  of  waste.  Harrington  v.  Birdsell,  5 
Week.  Dig.  421.  A  lessee,  in  the  absence  of  express  permission 
from  his  lessor,  is  not  justified  in  making  alterations.  Douglas 
v.  Wiggins,  I  Johns.  Ch.  435.  The  taking  down  partitions  is 
apparently  an  act  of  waste.  Agate  v.  Lozucnbcin,  57  N.  Y.  605  ; 
Woiten  v.  Wise,  47  Supr.  Ct.  515.  Pulling  down  valuable  build- 
ings is  waste,  but  the  erection  of  a  new  building  is  not.  Winship 
v.  Pitts,  3  Paige,  259.  Where  real  estate  was  devised  to  tru.stees 
absolutely  and  in  fee,  with  full  power  to  lease  for  the  most  money 
that  could  be  obtained,  and  for  any  term  they  might  think 
proper,  held,  that  they  were  not  guilty  of  waste  in  allowing  a  ten- 
ant to  pull  down  an  old  building  and  build  a  new  one,  it  appear- 


502  WASTE. 


Art.  I.     What  Constitutes  Waste. 


ing  that  the  resulting  improvement  greatly  benefited  the  prop- 
erty. N.  Y.  Dyeing  and  Printing  Establishment  V.  De  Westenberg, 
Abb.  Ann.  Dig.  1886,  p.  375.  It  is  waste  to  open  new  mines  to 
dig  and  carry  away  the  soil,  Coates  v.  Cheever,  i  Cow.  460 ; 
Livingston  v.  Reynolds,  2  Hill,  157.  And  where  lands  are  demised 
for  agricultural  purposes  only,  it  is  waste  for  a  tenant  to  work  an 
open  quarry.  Freer  v.  Stotenbnr,  2  Keyes,  467.  Where  a  tenant 
for  life  willfully  neglects  to  pay  interest  so  that  a  mortgage  may 
be  foreclosed,  it  is  waste.  Wade  v.  Malloy,  16  Hun,  226.  The  usual 
remedy  for  a  mortgagor  against  waste  is  by  injunction.  Brady  v. 
Waldron,  2  Johns.  Ch.  148.  And  when  a  judgment  is  a  lien  upon 
a  single  piece  of  land  and  the  judgment  debtor  is  in  possession,  an 
injunction  is  the  proper  remedy,  at  suit  of  the  judgment  creditor,  to 
restrain  waste  thereon.  Vanderinarkw.  Sehooninaker,  g  Hun,  16. 
See  provisions  of  Code  of  Civil  Procedure,  §  1442,  etc.  An  action 
will  lie  against  the  holder  of  the  equity  for  acts  committed  with 
knowledge  that  they  would  endanger  the  security  of  the  mort- 
gagee, as  cutting  valuable  timber  or  removing  fences.  Van  Pelt 
V.  MeGraiv,  4'N.  Y.  no.  See  Soiithworthv.  Van  Pelt,  3  Barb. 
347.  Where  an  act  was  proper  in  itself,  such  as  turning  a  water- 
course for  the  purpose  of  good  husbandry,  and  the  landlord  lies  by 
for  many  years  till  its  ultimate  results  have  proved  beneficial  to 
the  inheritance,  he  is  not  entitled  to  an  action.  Jacksoti  v. 
Andrezvs,  18  Johns.  431.  Plaintiff  may  recover  for  negligent 
waste,  as  in  suffering  building  to  be  burned,  though  the  complaint 
charge  defendant  with  setting  it  on  fire.  Robinson  v.  Wheeler,  25 
N.  Y.  252,  The  courts  of  this  State  have  no  jurisdiction  of  an 
action  for  waste  committed  out  of  the  State.  Cragin  v.  Lovell, 
88  N.  Y.  258.     See  Sentenis  v.  Ladew,  140  N.  Y.  463. 

The  right  to  maintain  an  action  of  waste  for  trespasses  given  to 
a  person  seized  of  an  estate  in  remainder  or  reversion  by  the 
Revised  Statutes,  is  continued  by  the  present  Code,  and  in  an 
action  for  waste  committed  by  a  life  tenant  brought  by  heirs  at 
law,  and  persons  entitled  under  the  will  of  the  testator,  it  was 
held  that  the  action  was  not  defeated  by  the  claim,  that  there 
had  been  an  equitable  conversion  of  the  property,  conferring 
the  right  of  action  on  the  executors.  Boiiton  v.  Thomas,  46 
Hun,  6. 


WASTE.  503 


Art.  2.     By  Whom  Action  Maintained. 


ARTICLE    11. 
By  Whom  Action  Maintained.     §§  1652-1654,  1656. 

§  1652.  Action  by  heir,  devisee,  or  grantor  of  reversion. 

An  heir  or  devisee  may  maintain  an  action  for  waste,  committed  in  the  time 
of  his  ancestor  or  testator,  as  well  as  in  his  own  time.  The  grantor  of  a  rever- 
sion may  maintain  an  action  for  waste,  committed  before  he  aliened  the  same. 

§  1653.  Id.  ;  by  ward  against  gueurdian. 

Such  an  action  may  also  be  maintained  against  a  guardian  by  his  ward,  either 
before  or  after  the  termination  of  the  guardianship,  for  waste,  committed  upon 
the  real  property  of  the  ward,  during  the  guardianship. 

§  1654.  Id.  ;  by  grantee  of  real  property  sold  under  execution. 

Where  real  property  is  sold  by  virtue  of  an  execution,  the  person,  to  whom  a 
conveyance  is  executed  pursuant  to  the  sale,  may  maintain  an  action  for  waste, 
committed  thereon  after  the  sale,  against  the  person,  who  was  then  in  possession 
of  the  property. 

^  1656.  Action  against  joint  tenant  or  tenant  in  common. 

An  action  for  waste  may  also  be  maintained,  by  a  joint  tenant  or  tenant  in 
common,  against  his  co-tenant,  who  commits  waste  upon  the  real  property  held 
in  joint  tenancy  or  in  common.  If  the  plaintiff  recovers  therein,  he  is  entitled, 
at  his  election,  either  to  a  final  judgment  for  treble  damages,  as  specified  in  the 
!ast  section,  or  to  have  partition  of  the  property,  as  prescribed  in  the  next  two 
sections. 

People  may_ bring  action  to  restrain  waste  on  lands  in  forest 
preserve.  §  280,  chap.  31,  General  Laws.  Loan  commissioners 
may  bring  action  to  restrain  waste  on  mortgaged  premises.  §  33, 
chap.  150,  Laws  1837.  Land  sold  for  taxes  shall  not  be  despoiled 
and  occupant  or  other  person  may  be  restrained.  Tax  Law, 
1896;  chap.  908,  §  129,  General  Laws. 

A  person  having  a  vested  remainder  in  land  may  maintain  an 
action  for  waste  against  one  holding  the  life  estate.  Williams  v. 
Pcabody,  8  Hun,  271.  As  the  reversioner  cannot  bring  trespass 
or  ejectment  against  a  tenant  so  long  as  the  tenancy  continues, 
he  is  not  debarred  from  his  remedy  at  law  or  in  equity  for  waste 
because  the  proceeding  may  involve  the  determination  of  a  dis- 
puted title.  Robinson  v.  Kimc,  70  N.  Y.  147.  He  need  not  wait 
till  the  expiration  of  the  tenancy  to  bring  his  action.  Agate  v. 
Lozvenbein,  57  N.  Y.  605 ;  Robinson  v.  Whcclcr,  25  N.  Y.  252. 
An  action  for  waste  can  be  maintained  by  the  grantee  of  the  rever- 
sioner against  the  assignee  or  sub-tenant  of  the  tenant  for  life. 
Rutherford  v.  Aiken,  2  T.   &  C.  281.     Owner  of  an  intervening 


504  WASTE. 


Art.  2.     By  Whom  Action  Maintained. 


estate  for  life  or  for  years  is  not  a  necessary  plaintiff  in  an  action 
for  waste  for  injury  to  inheritance  by  cutting  timber,  but  no  dam- 
ages can  be  recovered  in  such  action  for  injury  to  life  tenant;  he 
may  bring  a  separate  action.  Van  Dcusen  v.  Young,  29  N.  Y.  9. 
It  was  said  in  Peterson  v.  Clark,  15  Johns.  205,  that  only  the  per- 
son having  the  next  immediate  estate  of  inheritance  in  reversion 
or  remainder  can  maintain  an  action  for  waste,  and  a  person  hav- 
ing an  expectant  interest  in  land  less  than  an  inheritance  cannot 
maintain  it.  An  action  by  a  landlord  against  a  tenant  to  recover 
damages  for  the  removal  of  partitions  is  analogous  to  the  former 
action  for  waste,  and  plaintiff  must  show  an  injury  to  freehold 
and  reversion;  that  is,  to  his  own  estate.  Aberle  ^.  Fagan,  42 
Supr.  Ct.  217.  An  action  lies  by  the  mortgagee  for  waste  against 
the  mortgagor  or  his  grantee.  Ensign  v.  Colbnrn,  1 1  Paige,  503  ; 
Van  Pelt  v.  McGrazu,  4  N.  Y.  no. 

Under  the  Revised  Statutes  a  person  seized  in  remainder  or  re- 
version had  the  right  to  maintain  an  action  of  waste  for  any  in- 
jury done  to  the  inheritance,  notwithstanding  any  intervening 
estate  for  life  or  for  years,  and  this  right  is  continued  by  the  Code. 
Bonton  v.  Thomas,  10  St.  Rep.  827.  A  person  must  be  seized  of  an 
estate  in  remainder  or  reversion  in  order  to  maintain  an  action  for 
waste  for  injury  to  the  inheritance,  where  there  is  an  intervening 
estate  for  life.  Woodruff'  v.  Cook,  47  Barb.  304.  A  reversioner 
may  recover  for  waste  by  a  tenant  although  after  its  commission 
he  alienate  the  estate  and  have  no  interest  therein  at  the  time  of  suit 
brought.  Robinson  v.  Wheeler,  25  N.  Y.  252.  A  judgment 
creditor  having  no  specific  lien  cannot  maintain  an  action  for 
waste.  Lanning  v.  Carpenter,  48  N.  Y.  408.  As  to  right  to  an 
injunction  after  sale,  see  Vandermark  v.  Schoonmaker,  9  Hun, 
216.  It  seems  that  a  person  having  interest  in  the  premises  may 
maintain  the  action.  Lee  v.  Whallon,  20  Week.  Dig.  366.  The 
owner  and  one  who  has  contracted  to  purchase  are  necessary  par- 
ties to  an  action  for  waste  against  the  lessee.  Kidd  v.  Dennison, 
6  Barb.  9.  A  contract  to  purchase  upon  the  performance  of  acts 
to  be  done  by  the  purchaser  gives  no  right  to  enter  and  commit 
waste.  Cooper  v.  Stover,  9  Johns.  331.  It  is  not  necessary  to 
show  the  defendant's  primary  motive  in  committing  waste  was  to 
injure  plaintiff's  security.  It  is  enough  that  defendant  acted  with 
a  full  knowledge  of  the  circumstances,  though  primarily  with  a 
view  to  his  own  emolument.      Van  Pelt  v.  McGrazu,  4  N.  Y.  1 10. 


WASTE.  505' 


Art.  2.     By  Whom  Action  Maintained. 


Section    1925,  etc.,  gives  an  action  to  prevent  waste   of  public 
lands. 

A  purchaser  on  execution  is  entitled  to  the  proceeds  of  waste 
after  sale  and  before  time  to  redeem  if  there  is  no  redemption. 
Boydv.  Hoyt,  5  Paige,  65.     A  party  who  redeems  land  sold  on 
execution,  after  receiving  the  sheriff's  deed,  can  maintain  waste 
against  any  person  who,  intermediate  the  sale  and  sheriff's  deed, 
cuts  and   takes  timber  from   the  premises.      So  held  where  the 
party  who  bid  off  the  premises  at  the  sheriff's  sale  cut  and  carried 
away  the  timber  with  the  consent  of  the  judgment  debtor,  who 
was  in  possession.      Thomas  v.  Crofut,  14  N.  Y.  474.     It  is  held 
in  Potter  v.   Cromzucll,  40  N.  Y.   287,   that  where  the  purchaser 
of  real  estate  upon  sale  under  execution,  intermediate  the  sale  and 
the  sheriff's  deed,  severs  anything  from  the  realty,  he  is  liable  for 
its  value  only  to  the  person  who  eventually  receives  the  sheriff's 
deed. 

A  statutory  guardian  has  no  right  to  commit  or  permit  waste. 
Torry  v.  Black,  i  T.  &  C.  42,  affirmed,  58  N.  Y.  185.  But  the 
fact  that  the  avails  of  the  timber  cut  were  applied  to  the  support 
of  the  ward  may  be  pleaded  as  a  partial  defence.  Holbrook  v. 
Wells,  8  Week.  Dig.  391,  An  action  for  waste  will  lie  by  one  co- 
tenant  in  common  against  his  co-tenant  who  cuts  and  removes 
timber,  which  is  the  chief  value  of  the  land,  and  converts  it  to  his 
own  use.     Elwcllv.  Burnsidc,  44  Barb.  447. 

For  the  rule  and  authorities  as  to  allowance  of  treble  damages, 
see  §   1668. 

An  action  upon  a  covenant  against  waste  may  be  maintained 
for  waste  committed  by  the  assignee  of  the  tenant,  but  not  by  a 
landlord  against  his  tenant  for  waste  committed  by  an  assignee  of 
the  tenant  who  was  in  exclusive  possession  of  the  premises. 
Donald  v.  Elliott,  11  Misc.  120,  32  Supp.  821,  66  St.  Rep.  218, 
24  Civ.  Pro.  R.  190. 

Where  an  instrument,  termed  a  lease,  gave  to  the  lessee  "  the 
sole  and  exclusive  right  of  entering  in  and  upon  the  lands  *  *  -^^ 
for  the  purpose  of  quarrying,  cutting,  crushing  and  removing 
stone,  for  the  term  of  ten  years  *  *  *  but  not  to  hold  pos- 
session of  any  part  of  said  lands  for  any  other  purpose,"  held,  that 
it  gave  to  the  lessees  no  title  to  the  stone,  save  to  so  much 
thereof  as  they  should  quarry  and  remove  within  the  term  speci- 
fied ;  that  what  they  did  not  quarry  and  sever  from  the  land,  re- 


5o6  WASTE. 


Art.  3.     By  Whom  Action  Maintained. 


mained  the  property  of  the  owner  of  the  fee ;  and  that,  therefore, 
the  lessee  could  not  maintain  an  action  to  recover  the  value  of 
stone  unlawfully  quarried  and  taken  from  the  land  by  a  third  per-  'W 
son.  It  seems,  that  in  such  case  the  trespass  would  be  an  infringe- 
ment upon  the  rights  of  the  lessees  for  which  they  could  recover 
such  damages  as  they  could  show  they  had,  in  fact,  sustained. 
The  doctrine  that  a  tenant  for  life  or  years  is  bound  to  answer  to 
the  owner  for  any  waste,  even  though  it  be  the  act  of  a  stranger, 
applies  only  where  an  actual  tenancy  exists,  giving  the  lessee  the 
right  of  possession,  not  where  a  mere  incorporeal  hereditament 
is  transferred.  Where,  as  in  this  case,  the  lessor  retains  the  right 
to  and  remains  in  possession,  the  lessee  incurs  no  implied  obliga- 
tion to  protect  the  premises  from  trespassers,  and  is  liable  only 
for  his  own  acts.  Baker  v.  Hart,  123  N.  Y.  470,  26  Abb.  N.  C. 
194,  34  St.  Rep.  102,  reversing  52  Hun,  363,  24  St.  Rep.  362. 

A  complaint  was  dismissed  in  an  action  for  permissive  waste  on 
examination  of  the  evidence.     Eysavian  v.  Small,  1 5  Supp.  288. 

An  action  may  be  maintained  by  a  mortgagee  to  restrain  the 
removal  of  hand-painted  canvasses  which  are  firmly  cemented  to 
the  ceiling  of  the  mortgaged  premises  where  the  property  is 
heavily  mortgaged  and  their  removal  would  render  the  security 
inadequate.  Calm  v.  Hewsey,  8  Misc.  384,  59  St.  Rep.  868,  29 
Supp.  1 107,  31  Abb.  N.  C.  387. 

Where  in  an  action  against  a  lessee  for  waste,  the  complaint  did 
not  demand  treble  damages,  and  plaintiff  did  not  ask  for  them 
before  the  taxing  officer  or  on  a  motion  to  vacate  the  judgment, 
he  cannot  raise  the  question  before  the  General  Term.  Cleveland 
v.  Wilder,  78  Hun,  591,  60  St.  Rep.  764,  29  Supp.  209. 

Persons  to  whom  lands  have  been  devised  in  trust  may  main- 
tain an  action  for  trespass  causing  injury  to  the  inheritance  not- 
withstanding the  premises  are  in  the  possession  of  a  tenant  under 
a  lease.  The  erection  and  maintenance  of  an  elevated  railway  is 
such  a  trespass.  Mortimer  v.  Manhattan  Elevated  R.  R.  Co.  29 
St.  Rep.  262 ;  Doyle  v.  Majihattaji  Elevated R.  R.  '^S  St.  Rep.  373  ; 
Macy  V.  Metropolitan  Elevated  R.  R.  Co.  36  St.  Rep.  245. 

One  who  has  an  equitable  contingent  interest  in  lands  may 
maintain  an  action  to  restrain  waste.  One  seized  of  an  estate  in 
remainder  or  reversion  can  maintain  an  action  for  waste,  notwith- 
standing any  intervening  estate  for  life  or  years.  Piirton  v.  WaU 
son,  19  St.  Rep.  6. 


WASTE.  507 


Art.  3.     Against  Whom  Action  Lies  and  Defences. 


Remaindermen  have  an  existing  property  right  in  a  claim  for 
damages  to  their  portion  of  the  fee,  and  the  privilege  of  enforcing 
it  is  not  suspended  during  the  prior  estate.  Such  damages  may 
be  apportioned  by  taking  what  would  be  the  damage  to  the 
whole  fee  and  apportioning  such  amount  between  the  life-tenant 
and  the  remaindermen  according  to  annuity  tables.  Thompson 
V.  Manhattan  R.  R.  Co.  24  St.  Rep.  498. 

An  action  for  waste  cannot  be  maintained  upon  the  bond  of  a 
deceased  general  guardian  charged  with  having  in  his  lifetime 
wasted  his  ward's  estate,  until  a  decree  has  been  made  by  the  sur- 
rogate, upon  an  accounting  of  the  deceased  guardian's  administra- 
tor, determining  the  amount  of  the  devastavit.  Whether  such  an 
action  can  in  any  event  be  maintained  by  the  deceased  guardian's 
successor  or  must  be  brought  in  the  name  of  the  infant  by  a 
guardian  ad  litem.     Query.     Perkins  v.  Stimmel,2T)  St.  Ke^.  6^)"/. 

Where  an  executrix  was  authorized  to  sell  the  real  estate  of  the 
testator  and  was  given  the  possession  of  the  realty  until  it  is  sold, 
with  the  rents  and  profits  thereof,  in  an  action  brought  by  the 
legatees  against  the  executrix  in  her  individual  capacity  to  restrain 
the  cutting  down  and  selling  of  timber  from  the  real  estate,  in 
which  it  was  not  shown  that  the  value  of  the  estate  was  impaired, 
or  the  defendant  insolvent,  or  that  she  was  unable  to  respond  in 
damages  when  called  upon  by  those  interested  in  the  estate,  it 
was  held  that  no  cause  appeared  for  equitable  interference.  This 
seems  to  have  been  the  second  appeal,  the  first  appeal  having 
been  reported  115  N.  Y.  290,  Ogsbiiry  v.  Ogsbury\  Keller  v.  Ogs- 
biiry,  121  N.  Y.  362. 

ARTICLE  III. 

Against  Whom  Action  Lies  and  Defences.     §  165 1. 

§  165 1.  Who  liable  to  action  for  waste. 

An  action  for  waste  lies  against  a  tenant  by  the  curtesy,  in  dower,  for  life,  or 
for  years,  or  the  assignee  of  such  a  tenant,  who,  during  his  estate  or  term,  com- 
mits waste  upon  the  real  property  held  by  him,  without  a  special  and  lawful 
written  license  so  to  do;  or  against  such  a  tenant,  who  lets  or  grants  his  estate, 
and  still  retaining  possession  thereof,  commits  waste  without  a  like  license. 

An  action  of  wa.ste  will  not  lie  against  a  testamentary  trustee 
who  enters  on  the  land  devised  and  commits  waste  thereon. 
Kincaid  w  Scott.  12  Johns.  368.  A  mortgagee  cannot,  it  is  said, 
maintain  an  action  of  waste  against  a  mortgagor  before  forfeiture. 


5o8 


WASTE. 


Art.  4.     Injunction  to  Restrain  Waste. 


Peterson  v.  Clark,  15  Johns,  205.  See  Thomas  on  Mortgages,  55, 
n.  2.  The  action  lies  against  the  assignee  of  a  lease.  Short  v. 
Wilson,  13  Johns.  33.  If  a  lessee  commits  waste,  an  immediate 
action  lies  against  him.  Agate  v.  Lozvcnbein,  57  N.  Y.  605.  The 
action  is  said  not  to  lie  against  a  stranger.  Livingston  v.  Hey- 
wood,  II  Johns.  429;  Bates  v.  Shraeder,  13  Johns.  260.  A  parol 
license  cannot  justify  waste  in  a  tenant  for  life  or  for  years.  The 
fact  that  such  license  was  on  condition  he  should  clear  and  seed 
the  land  on  which  he  cut  timber  does  not  avail.  McGregor  v. 
Brozvn,  10  N.  Y.  1 14.  It  is  no  defence  to  an  action  for  waste 
against  a  tenant  for  life  that  he  acted  in  good  faith,  or  under  a 
claim  of  right,  or  that  he  was  in  possession  claiming  a  fee.  Robin- 
son v.  Kime,  70  N.  Y.  147. 

A  contract  of  purchase  upon  the  performance  of  certain  acts  to 
be  done  by  the  purchaser  gives  no  right  to  enter  and  commit 
waste.  Cooper  V.  Stover,  9  Johns.  331.  In  an  action  for  waste, 
or  in  the  nature  of  waste,  for  making  unauthorized  alterations 
upon  leased  lands  the  lessees  cannot  offset  any  benefit  to  the  prop- 
erty from  such  alterations.  Wolton  v.  Wise,  ^y  Super.  Ct.  515. 
If  a  tenant  repairs  what  would  be  held  to  be  waste  before  action 
brought,  it  is  a  defence.  Jackson  v.  Andrew,  18  Johns.  431.  A 
purchaser  rightfully  in  possession  under  an  executory  contract,  by 
which  time  is  given  for  the  payment  of  the  purchase  money,  will 
not  be  restrained  from  cutting  timber  unless  he  do  so  to  such  an 
extent  as  to  render  the  land  an  inadequate  remedy  for  the  pur- 
chase money.      Van  Wyck  v.  Alligcr,  6  Barb.  507. 

Where  a  lease  contains  a  covenant  against  waste  by  the  tenant, 
but  no  provision  against  subletting  or  assigning,  and  the  tenant 
assigns  his  term,  and  waste  is  committed  by  the  sub-lessee,  the 
lessor  cannot  maintain  an  action  against  the  tenant  under  §§  165 1, 
etc.,  of  the  Code  of  Civil  Procedure  and  recover  treble  damages, 
but  is  put  to  an  action  against  the  assignee  for  waste,  or  against 
the  tenant  for  the  breach  of  the  covenants  of  the  lease.  Donald 
v.  Elliott,  24  Civ.  Pro.  R.  190. 


ARTICLE  IV. 
Injunction  to  Restrain  Waste.     §  1681. 

§  1681.  Defendant,  how  prevented  from  committing  wraste,  etc. 

If,   during   the   pendency   of  an   action   specified   in  tliis  title,   the  defendant 
commits  waste  upon,  or  does  any  other  damage  to,  the  property  in  controversy, 


WASTE.  509 


Art.  4.      Injunction  to  Restrain  Waste. 


the  court,  or  a  judge  thereof,  may,  upon  the  application  of  the  plaintiff,  and  due 
proof  of  the  facts  by  affidavit,  grant,  without  notice  or  security,  an  order,  restrain- 
ing him  from  the  commission  of  any  further  waste  upon  or  damage  to  the 
property.  Disobedience  to  such  an  order  may  be  punished  as  a  contempt  of 
court.  This  section  does  not  affect  the  plaintiff's  right  to  a  permanent  or  a 
temporary  injunction  in  such  an  action. 

§  1442.    Order  to  prevent  waste;   when  and  how  applied  for. 

If,  at  any  time  during  the  period  allowed  for  redemption,  the  judgment  debtor, 
or  any  other  person  in  possession  of  the  property  sold,  commits  or  threatens  to 
commit,  or  make  preparation  for  committing  waste  thereupon,  the  supreme 
court,  or  any  justice  thereof,  within  the  judicial  district,  or  any  county  judge  of 
the  county,  in  which  the  property,  or  any  part  thereof,  is  situated,  may,  upon 
the  application  of  the  purchaser,  or  his  assignee,  or  the  agent  or  attorney  of 
either,  and  proof,  by  affidavit,  of  the  facts,  grant,  without  notice,  an  order, 
restraining  the  wrong-doer  from  committing  waste  upon  the  property. 

These  sections  are  given  out  of  their  order,  since  they  apply 
only  to  an  injunction  to  restrain  waste,  although  it  may  be  granted 
in  other  real  estate  actions  under  §  168 1.  See  also  §§  1443,  1444 
as  to  how  violation  of  such  order  is  punished. 

In  ejectment,  where  the  title  is  clear,  and  there  is  danger  that 
rents  and  profits  may  be  removed  out  of  the  jurisdiction,  an 
injunction  will  issue  to  restrain  the  payment  of  rents  and  profits 
to  defendant.  Rcnncr  v.  Mullcr,  44  Super.  Ct.  535.  See  contra. 
Storm  V.  Mann,  4  Johns.  Ch.  21  ;  People  v.  Davison,  4  Barb.  109. 
After  judgment  and  sale  in  foreclosure,  and  while  awaiting  con- 
firmation, the  court  has  authority,  on  petition  of  the  purchaser, 
to  restrain  the  mortgagor  from  committing  waste.  Mutual  Life 
Ins.  Co.  V.  Bigler,  79  N.  Y.  568.  After  a  foreclosure  sale,  but 
before  its  confirmation,  a  mortgagor  who  remains  in  possession 
will  be  enjoined  from  removing  machinery,  which  is  claimed  by 
the  purchaser  to  be  part  of  the  realty.  Mutual  Life  Ins.  Co.  v. 
Bank  of  Neivburg,  18  Hun,  371  ;  s.  C.  79  N.  Y.  568;  Robinson  v. 
Preszvick,  3  Edw.  Ch.  246.  Injunction  lies  against  mortgagor  in 
possession  to  stay  waste  to  the  injury  of  the  security.  Brady  v. 
Waldron,  2  Johns.  Ch.  148.  See  /o/inson  v.  White,  11  Barb.  184. 
An  injunction  lies  to  stay  waste  by  changing  a  dwelling-house 
into  a  store;  Douglas  v.  Wiggins,  i  Johns.  Ch.  435;  to  prevent 
one  in  possession  from  cutting  timber,  and  to  prevent  the  removal 
of  timber  cut.  Weatherby  v.  Wood,  29  How.  404 ;  Spear  v.  Cutter, 
2  C.  R.  100.  Injunction  refused  where  cutting  was  threatened 
in  Griffin  v,  Winne,  10  Hun,  571,  afifirmed,  79  N.  Y.  657.  Waste 
in  mines  and  quarries  will  be  restrained.      West  Point  Iron  Co.  v. 


5IO 


WASTE. 


Art.  4.     Injunction  to  Restrain  Waste. 


Reyniert,  45   N.  Y.  703.     Where  an  intention  to  commit  waste  is 
shown,  an  injunction  will  issue.    Livingston  v.  Reynolds,  26  Wend. 

115- 

To  obtain  an  order  against  waste  under  §  168 1  it  is  not  neces- 
sary to  show  the  insolvency  of  the  party  sought  to  be  restrained. 
The  provision -of  that  section,  however,  does  not  include  the 
removal  of  wood  or  timber  already  cut.  Trustees,  etc.  v.  Matte- 
son,  12  St.  Rep.  370,  citing  People  v.  Alberty,  11  Wend.  161 ; 
Johnson  v.  White,  1 1  Barb.  194,  stating  that  a  different  rule  is 
held  in  an  action  brought  to  restrain  waste  not  only  will  future 
waste  be  restrained,  but  the  removal  of  timber  already  cut.  Kidd 
V.  Dennison,  6  Barb.  18;  Watson  v.  Hunter,  5  Johns.  Ch.  169; 
Weather  by  v.  Wood,  29  How.  404;  Farrington  v.  Birdsall,  5 
Week.  Dig.  421. 

Equity  interferes  by  injunction  to  restrain  waste  and  prevent 
injury  if  the  waste  or  trespass  is  shown  to  be  an  irreparable  mis- 
chief, or  where  defendant  is  irresponsible.  Spear  v.  Cutter,  5 
Barb.  486.  But  not  where  defendant  is  in  possession  claiming  ad- 
versely and  plaintiff  has  brought  ejectment.  Storm  v.  Mann,  4 
Johns.  Ch.  21. 

An  injunction  will  be  granted  at  a  suit  of  the  mortgagee  to  pre- 
vent cutting  timber  and  the  removal  of  that  already  cut.  Herman 
v.  Stewart,  5  Week.  Dig.  408  ;  Farmington  v.  Birdsall,  5  Week. 
Dig.  421;  Bradley  V.  Waldron,  2  Johns.  Ch.  148;  but  see  Watson 
V.  Hunter,  5  Johns.  Ch.  169.  It  will  be  granted  generally  to  pre- 
vent waste  or  injury  to  land.  Relyea  v.  Weaver,  34  Barb.  548, 
affirmed,  DuBoisv.  Weaver,  25  N.  Y.  123;  Johnson  v.  White,  ii 
Barb.  194;  Rodgers  v.  Rodgers,  ii  Barb.  595.  An  injunction  will 
be  granted  against  a  mortgagor  to  restrain  a  waste  of  fixtures  im- 
pairing a  mortgage  security.  Robinson  v.  Preswick,  3  Edw.  246. 
But  a  mortgagor  who  has  sold  his  equity  of  redemption,  taking  no 
indemnity  against  his  bond,  since  he  has  no  remaining  interest  in 
the  land,  cannot  have  an  injunction  to  stay  waste  against  his 
vendee.  Brumley  v.  Fanning  i  Johns.  Ch.  501.  See,  however, 
Johnson  V.  White,  ii  Bar.  194. 

An  injunction  may  be  granted  to  prevent  the  removal  of  timber 
already  cut  or  the  court  may  require  security  as  a  condition  of 
modifying  an  injunction  in  that  respect.  Weatherby  v.  Wood,  29 
How.  404 ;  Kidd  v.  Dennison,  6  Barb.  9. 

One  in  possession  of  land  whose  interest  has  been  sold  under 


WASTE.  5  I  I 


Art.  5.  Judgment.     Art.  6.   Miscellaneous  Provisions  as  to  Waste. 

execution  will  be  restrained  from  committing  wa.ste  during  his 
possession.      Talbot  v.  Chamberlain,  3  Paige  Ch.  219. 

Injunction  will  be  granted  against  the  working  of  a  mine  by 
other  than  the  owner.     West  Point  Iron  Co.  v.  Rcymcrt,  45  N.  Y.  703. 

An  injunction  may  be  granted  in  foreclosure  after  sale  and 
before  its  confirmation  to  restrain  a  mortgagee  from  removing  ma- 
chinery from  the  mortgaged  premises.  Mutual  Life  Ins.  Co.  v. 
Bigler,  79  N.  Y.  568. 

So  in  ejectment,  where  the  title  of  the  plaintiff  is  clear  and  there 
is  danger  that  the  rents  and  profits  may  be  removed  out  of  the 
jurisdiction,  an  injunction  will  issue  to  restrain  the  payment  of 
rents  to  the  defendant.     Renner  v.  Muller,  44  Supr. ,  535. 

Where  a  judgment  is  a  lien  upon  but  one  piece  of  real  estate, 
from  which  alone  satisfaction  of  the  judgment  .could  be  obtained, 
the  judgment  debtor  being  dead,  and  such  real  estate  is  inade- 
quate security  for  the  payment  thereof,  a  court  of  equity  will, 
upon  the  application  of  the  judgment  creditor,  restrain  one  in 
possession  of  such  real  estate  from  the  commission  of  waste 
thereon,  by  cutting  and  removing  timber  or  wood  therefrom, 
where  such  acts  diminish  the  value  of  the  premises,  and  thereby 
repair  the  only  security  upon  which  the  creditor  must  rely  for 
payment  of  his  debt.      Vandemark  v.  Schoonniaker,  9  Hun,  16. 

ARTICLE    V. 
Judgment.     §  1655. 

§  1655.  Judgment  in  action  against  tenant  of  particular  estate. 

If  the  plaintiff  recovers  in  an  action  for  waste,  other  than  an  action  brought 
as  prescribed  in  the  next  section,  the  final  judgment  must  award  to  him  treble 
damages.  Where  the  action  is  brought  by  the  person  next  entitled  to  the 
reversion,  and  it  appears,  in  like  manner,  that  the  injury  to  the  estate  in  rever- 
sion is  equal  to  the  value  of  the  tenant's  estate  or  unexpired  term,  or  that  it  was 
done  maliciously,  the  final  judgment  must  also  award  to  the  plaintiff  the  for- 
feiture of  the  defendant's  estate,  and  the  possession  of  the  place  wasted. 

The  trial  must  be  by  jury  unless  it  is  waived.     Code,  §  968. 

ARTICLE   VI. 

Miscellaneous  Provisions  as  to  Waste.   §§  1657, 1658, 1659. 

§  1657.  Id.;  interlocutory  judgment  for  partition. 

Where  the  plaintiff  elects  to  have  partition,  as  prescribed  in  the  last  section,  if 
the    pleadings,   verdict,   report,   or  decision,    do   not   determine   the  rights   and 


512 


WASTE. 


Art.  6.     Miscellaneous  Provisions  as  to  Waste. 


interests  of  the  several  parties  in  the  property  so  held  in  joint  tenancy  or  in 
common,  the  court  must  ascertain  them,  by  a  reference  or  otherwise.  If  it 
appears  that  there  are  persons,  not  parties  to  the  action,  who  must  have  been 
made  parties  to  an  action  for  the  partition  of  the  property,  they  must  be  brought 
in  by  supplemental  summons,  and,  if  necessary,  supplemental  pleadings  must 
be  made.  When  the  rights  and  interests  of  all  the  parties  are  ascertained,  an 
interlocutory  judgment  for  the  partition  or  sale  of  the  property  must  be  rendered, 
and  the  subsequent  proceedings  thereon  must  be  the  same,  as  in  an  action  for 
the  partition  of  the  property,  except  as  otherwise  prescribed  in  the  next  section. 

§  1658.  Id.;  damages  to  be  deducted  from  defendant'^  share. 

The  plaintiff  may  elect  to  take  final  judgment  for  the  single  damages  awarded 
to  him,  or  that,  in  making  the  partition,  or  in  dividing  the  proceeds  of  a  sale, 
so  much  of  the  share  of  the  defendant  in  the  real  property;  or  the  proceeds 
thereof,  as  will  be  sufficient  to  compensate  the  plaintiff  for  his  single  damages, 
and  the  costs  of  the  action,  other  than  the  expenses  of  making  the  partition  or 
sale,  be  laid  off  or  paid,  as  the  case  may  be,  to  the  plaintiff.  The  residue  of  the 
property  or  proceeds,  not  laid  off  or  distributed  to  the  plaintiff  or  the  defendant, 
must  be  laid  off  or  paid  to  the  persons  entitled  thereto,  according  to  their 
respective  rights  and  interests. 

§  1659.  View;  when  not  necessary;  when  and  how  made. 

In  an  action  for  waste,  it  is  not  necessary,  either  upon  the  execution  of  a  writ 
of  inquiry,  or  upon  the  trial  of  an  issue  of  fact,  that  the  jury,  the  judge,  or  the 
referee,  should  view  the  property.  Where  the  trial  is  by  a  referee,  or  by  the 
court  without  a  jury,  the  referee  or  the  judge  may,  in  his  discretion,  view 
the  property,  and  direct  the  attorneys  for  the  parties  to  attend  accordingly.  In 
any  other  case,  the  court  may,  in  its  discretion,  by  order,  direct  a  view  by  the 
jury. 


CHAPTER  VII. 

NUISANCE.* 

PAGE. 

Article  i.  The  nature  of  the  statutory  action.     Sec.  1663 513 

2.  When  the  action  will  lie.     Sec.  1600 518 

3.  Who  can  maintain  the  action 530 

4.  Defendants  and  defences.     Sec.    1661 542 

5.  Pleadings  and  practice 548 

6.  Relief  granted  and  measure  of  damages.   Sec.  1662.  560 

7.  Injunction  in  action  for  nuisance 567 

Sections   of    the    Code   of  Procedure    and  Where  Found  in 

THIS  Chapter, 

SEC.                                                                                                                                                              ART.  PAGE. 

1660.  When  action  may  be  brought 2  518 

1661.  Defendants  therein 4  542 

1662.  Final  judgment 6  560 

1663.  Application  of  this  article i  513 

ARTICLE  I. 
The  Nature  of  the  Statutory  Action.    §  1663. 

§  1663.  Application  of  this  article. 

This  article  does  not  affect  an  action,  wherein  the  complaint  demands  judg- 
ment for  a  sum  of  money  only. 

It  is   exceedingly  difficult  to  define  the    distinction   between 

negligence  and  nuisance,  and  it  is  so  clearly  stated  in  note  25  Abb. 

N.  C,  page  198,  that  the  following  quotation  is  made  therefrom: 

It  is  not  strange  that  writers  on  nuisance  have  declared  the 

'  word  to  be   undefinable,  so  shadowy  is  the  border-land  between 

'  these  several  classes  of  wrongs.     But  a  careful  examination  of 

'  the  representative  cases  cited  below  will  justify  us  in  saying  that 

'  the  word  as  now  used  in  the  law  may  be  justly  defined  as  a 

'  continuing  use  of  property  or  course  of  conduct,  which,  even  if 

'  it  would   be   rightful  were  the  act  done  an  i.solated  one,  is  by 

'  reason  of  the   proximity  of  others,  a  violation   of  the  duty  of 

'  good   neighborhood  no  matter  whether  it  be  careful,  negligent 

'  or  willful. 


*Wood  on  Nuisance  discusses  this  subject  very  fully,  and  it  is  considered  in 
works  on  tort,  more  particularly  Milliard  on  Remedies  for  Torts  and  in  the 
treatises  of  Addison,  Bishop  and  Cooley. 

[Special  Actions  —  33.]  [513] 


SH 


NUISANCE. 


Art.  I.     The  Nature  of  the  Statutory  Action. 


It  will  aid  in  solving  such  questions  as  these  to  consider  what 
"  are  essential  elements  in  each  cause  of  action.  Actionable 
"  negligence  consists  in  the  omission  to  fulfill  a  duty  of  care. 
"  The  complaint  must  allege  facts  which  show  that  defendant  was 

under  a  duty  to  take  some  degree  of  care  in  view  of  danger  to 

plaintiff's  property  or  person;  and  that  he  or  his  servants  failed 
"  to  do  so  to  plaintiff's  injury.  If  this  be  shown,  intent  is  not 
"  material  except  on  the  question  of  damages.  The  right  of  re- 
"  covery  exists  whether  the  omission  was  inadvertent  or  willful  or 
"  whether  it  was  inadvertent  on  the  part  of  the  employer  and 
"  willful  on  the  part  of  the  servant.  It  is  true  that  some  authori- 
"  ties  have  held  that  if  willfulness  is  alleged  there  can  be  no 
"  recovery  for  negligence;  but  the  better  opinion  is  that  if  facts 
"  showing  an  omission  of  due  care  be  alleged  and  proved,  the  ad- 
"  dition  of  an  unproved  allegation  of  willfulness  does  not  vitiate. 

"  Nuisance,  on  the  other  hand,  is  a  use  of  property  or  a  course 
"  of  conduct  which  violates  a  duty  of  good  neighorhood  ;  and 
"  negligence  and  willfulness  are  alike  immaterial,  unless  it  maybe 
"  on  the  question  of  damages.  A  bone-boiling  establishment  in 
"  a  remote  and  isolated  place  is  rightful;  but  if  the  town  of  resi- 
"  dences  grows  out  to  it,  it  may  be  a  duty  of  good  neighborhood 
"  to  cease  the  use  of  the  place  for  such  offensive  work;  and  the 
"  fact  that  the  owner  is  as  careful  as  possible,  and  has  no  intent 
"  to  injure  others,  will  not  justify  the  continuance  of  a  process 
"  which  proximity  has  made  noxious  to  the  community. 

"  The  law  of  negligence  is  growing  up  out  of  the  increasing 
"  duty  of  care  upon  all  persons  in  the  increasingly  crowded  com- 
"  munities  and  increasingly  dangerous  instrumentalities  of  modern 
"  times.  The  law  of  nuisance  is  growing  up  out  of  the  increasing 
"  necessary  restrictions  on  otherwise  lawful  conduct  and  uses  of 
"  property  in  such  communities.  Negligence  usually  consists  in 
"  the  manner  of  doing  a  thing,  whether  the  thing  in  itself  be  law- 
"  ful  or  unlawful.  Nuisance  consists  in  the  thing  itself  considered 
"  in  its  proximity  to  other  persons  whether  the  manner  of  it  be 
"  careful  or  careless." 

The  note  cited  also  calls  attention  to  other  distinctions  between 
negligence  and  nuisance,  among  others  the  different  period  of 
limitation,  the  fact  that  notice  or  demand  before  suit  is  required 
in  some  cases  against  some  person  who  merely  continues  a  nui- 
sance, also  that  equitable  relief  may  be  granted  as  against  nuisance. 


I  t 


NUISANCE.  515 


Art.  I.     The  Nature  of  the  Statutory  Action. 


while  the  only  remedy  for  negligence  is  damages  recoverable  in 
an  action  of  a  legal  nature.  A  number  of  cases  are  also  cited  as 
indicating  the  distinction,  namely  Wasson  v.  Pettit,  49  Hun,  166. 
16  St.  Rep.  778;  Jennings  v.  Van  Schaick,  20  Abb.  N.  C.  324; 
Dickinson  v.  Mayor,  92  N.  Y.  584;  Cohen  v.  Mayor,  113  N.  Y. 
532,  23  St.  Rep.  509;  Conhocton  Stone  Road  v.  Buffalo^  N.  Y.  & 
Erie  R.  R.  Co.  51  N.  Y.  573  ;  Splittorf  v.  State,  108  N.  Y.  205  ; 
McCaffrey  v.  Tzventy-third  St.  R.  R.  Co.  a,J  Hun,  404;  Donner 
V.  Ogikne,  49  Hun,  229;  Dunsbach  v.  Hollistcr,  49  Hun,  352. 

The  entire  discussion  is  an  exceedingly  careful  and  exhaustive 
one  and  indicates  the  distinction  between  the  actions.  It  is  ap- 
pended to  Fisher  v.  Rankin,  25  Abb.  N.  C.  191,  holding  that  a 
complaint  for  damages  for  personal  injuries  occasioned  by  the  negli- 
gence and  carelessness  of  defendant  in  failing  to  keep  a  sidewalk 
in  safe  and  proper  condition,  will  not  sustain  a  recovery  on  the 
ground  that  defendant  unlawfully  interfered  with  the  previous  con- 
dition of  such  sidewalk,  rendering  it  unsafe  and  a  public  nuisance. 

It  is  said  to  be  impracticable  to  give  a  precise  technical  defi- 
nition of  what  constitutes  a  nuisance  at  common  law,  and  that 
the  only  accurate  method  of  ascertaining  the  meaning  of  the  term 
is  to  examine  decided  cases  adjudged  to  be  or  not  to  be  nuisances. 
4  Wait's  Actions  and  Defenses,  726.  It  is  defined  by  Blackstone 
as  anything  that  worketh  hurt,  inconvenience  or  damage.  A 
nuisance  is  any  wrongful  conduct  in  the  management  of  property, 
or  any  wrongful  interference  with  the  property  of  the  public,  not 
necessarily  depending  for  its  wrongful  character  on  negligence. 
Cooley  on  Torts,  565.  What  is  a  nuisance  is  a  question  of  fact. 
A  nuisance  is  something  noxious  or  offensive  to  any  of  the  senses, 
either  to  the  sense  of  sight  or  hearing  as  well  as  smelling,  and 
that  may  be  a  nuisance  which  ofTends  none  of  the  senses  if  it  be 
deleterious  to  the  health  or  safety,  or  noxious  to  human  enjoy- 
ment. Pickardv.  Collins,  23  Barb.  453.  \w  Butter  field  v.  Klaber, 
52  How.  255,  the  court  held,  that  in  the  enjoyment  of  his  own 
land  one  must  be  confined  to  such  reasonable  use  thereof  as  will 
not  inflict  injury  upon  his  neighbor,  or  conflict  with  his  neighbor's 
reasonable  enjoyment,  and  must  submit  to  such  annoyances  as 
result  from  the  reasonable  use  and  enjoyment  of  his  neighbor,  of 
land  belonging  to  him.  Citing  Campbell  v.  Seaman,  2  T.  &  C. 
235.  The  real  question  is,  whether  the  annoyance  substantially 
interferes  with  the  comfort  of  human  existence  and  the  enjoyment 


5l6  NUISANCE. 


Art.  I.     The  Nature  of  the  Statutory  Action. 


of  property.  Mulligan  v.Elias,  12  Abb.  (N.  S.  )  259.  The  rule 
is,  that  while  a  man  may  prosecute  such  business  as  he  chooses 
on  his  own  premises,  he  has  no  right  to  maintain  or  erect  an 
injury  to  an  adjoining  proprietor,  or  to  his  neighbors,  even  in  pur- 
suance of  a  lawful  trade.     Hecg  v.  Licht,  80  N.  Y.  579. 

The  term  nuisance  in  legal  phraseology,  is  applied  to  that  class 
of  wrongs  that  arise  from  the  unreasonable,  unwarrantable,  or 
unlawful  use  by  a  person  of  his  own  property,  real  or  personal,  or 
from  his  own  improper,  indecent,  or  unlawful  personal  conduct, 
working  an  obstruction  of  or  injury  to  a  right  of  another  or  of  the 
public,  and  producing  such  material  annoyance,  inconvenience, 
discomfort,  or  hurt,  that  the  law  will  presume  a  consequent  dam- 
age. Amer.  Ency.  of  Law,  Article  Nuisance,  page  924,  citing 
Wood  on  Nuisances;  and  the  definition  of  a  nuisance  maybe 
said  to  be  anything  wrongfully  done  or  permitted  to  be  done 
which  injures  or  annoys  another  in  the  enjoyment  of  his  legal 
rights,  and  Taylor's  Landlord  and  Tenant,  §  201  :  "Any  offen- 
sive erection  which,  from  its  nature,  may  be  an  annoyance,  or  from 
its  situation  actually  becomes  so,  is  a  nuisance. 

In  Cogswell  V.  Nezv  York,  New  Haven  and  Hartford  R.  R.  Co. 
105  N.  Y.  319,  this  action  is  defined  as  being  a  remedy  for  dam- 
ages and  for  the  abatement  of  a  private  nuisance,  a  legal  action 
technically  known  as  an  assize  of  nuisance,  it  was  part  of  the  judg- 
ment that  the  nuisance  be  abated,  citing  3  Blackstone's  Com. 
220 ;  Waggoner  v.  Jerinainc,  3  Denio,  306,  and  the  legal  remedy 
by  writ  of  nuisance  for  the  recovery  of  damages  and  an  abatement 
of  the  nuisance  was  retained  by  the  Revised  Statutes,  and  though 
the  writ  of  nuisance  was  abolished,  the  same  relief  may  now  be 
had  in  an  ordinary  civil  action  under  the  Code. 

A  nuisance  as  defined  in  Heeg  v.  Licht,  80  N.  Y.  579:  "Any 
unwarrantable,  unreasonable  or  unlawful  use  by  a  person  of  his 
own  property,  real  or  personal,  to  the  injury  of  another." 

It  is  said  by  the  codifiers  that  the  remedy  afforded  by  this  arti- 
cle has  long  been  out  of  favor,  both  with  the  courts  and  the  pro- 
fession, since  an  action  for  damages,  or  in  the  nature  of  a  suit  in 
equity,  appears  to  afford  an  ample  remedy.  It  was  said  in  Aikin 
V.  Benedict,  39  Barb.  400,  to  be  the  appropriate  remedy.  At  com- 
mon law  the  remedy  was  by  action  on  the  case  or  writ  of  nuisance ; 
the  latter  remedy  was  abolished  by  the  old  Code,  §  453.  The 
action   in   equity  remains;  Parker  v.  Laney,  i   T.  &  C.  590 ;  and 


NUISANCE.  5^7 


Art.  I.     The  Nature  of  the  Statutory  Action. 


the  present  action  seems  to  be  a  provision  for  both  the  removal 
of  the  nuisance  and  the  recovery  of  the  damages  occasioned  by  it. 
But  in  equity  the  continuance  of  the  nuisance  can  be  restrained 
and  damages  recovered  as  an  incident.  Hudson  v.  Caryl,  44  N, 
Y.  553.  An  action  both  legal  and  equitable  in  its  character  may 
be  maintained  by  the  people,  through  the  attorney-general,  for  the 
removal  of  a  nuisance,  for  an  injunction  against  its  continuance, 
and  for  damages.  People  v.  Met.  Tel.  &  Tel.  Co.  1 1  Abb.  N.  C.  304. 
Johnston  v.  Manhattan  Ry.  Co.  41  St.  Rep.  682,  following  105 
N.  Y.  321,  7  St.  Rep.  203,  holds  that  an  action  in  which  the  com- 
plaint prays  judgment  for  damages  and  the  abatement  of  the  nui- 
sance complained  of,  and  also  for  an  injunction  restraining  the 
defendants  from  continuing  the  nuisance  and  permitting  its  lands 
to  be  used  for  the  purpose  of  carrying  on  any  business  thereon 
which  shall  injure  the  plaintiff  in  the  enjoyment  of  her  property, 
is  not  an  action  for  nuisance  within  §  968  of  the  Code,  which  pro- 
vides for  a  trial  by  jury  in  an  action  for  nuisance.  Reading  that 
section  in  connection  with  §  1660,  an  equitable  action  to  restrain 
the  continuance  of  a  nuisance  is  not  the  statutory  action,  and  the 
mere  allegation  in  the  complaint  that  the  trespass  upon  real  estate 
is  unauthorized  and  is  a  nuisance,  and  asking  that  the  continuance 
of  such  trespass  be  enjoined,  would  not  make  the  action  one  for  a 
nuisance  in  w^hich  the  plaintiff  is  entitled  as  matter  of  right  to  a 
trial  by  jury. 

Cogszvell  V.  New  York,  Neiv  Haven  &  Hartford  R.  R.  Co.  105 
N.  Y.  319,  followed  above,  holds  that  where  a  party  elects  to 
bring  an  action  for  both  legal  and  equitable  relief  in  respect  to 
the  same  cause  of  action,  the  case  is  not  one  of  right  triable  by  a 
jury,  and  by  such  election  he  submits  to  have  the  issues  tried  by 
the  court  alone  or  with  the  aid  of  the  jury,  as  the  court  in  its  dis- 
cretion may  determine,  according  to  the  practice  in  equity  cases, 
and  that  an  equitable  action  to  restrain  the  continuance  of  a  nui- 
sance, or  an  action  for  a  nuisance  in  which  equitable  relief  is  also 
demanded,  is  not  an  action  for  a  nuisance  within  the  meaning  of 
the  provisions  of  the  Code  giving  jury  trial.  Where  the  com- 
plaint asked  judgment  for  damages  and  for  an  abatement  of  an 
alleged  nuisance,  and  also  for  an  injunction  restraining  a  continu- 
ance of  the  nuisance,  a  jury  trial  is  not  a  matter  of  right.  To 
same  effect  is  Dean  v.  Benn,  69  Hun,  519,  52  St.  Rep.  844,  23 
Supp.  708.     See,  however,  Hudson  v.  Caryl,   44  N.  Y.  556. 


5i8 


NUISANCE. 


Art.  2.     When  the  Action  Will  Lie. 


In  Robinson  \.  Smithy  25  St.  Rep.  647,  it  is  said,  citing //?^/r/^z';/j- 
V.  Sjnith,  63  Barb.  252,  that  there  is  ample  authority  to  establish 
the  right  of  the  plaintiff  to  maintain  a  suit  in  which  he  may  both 
recover  damages  for  the  nuisance  and  remove  it  by  the  aid  of  the 
law.  A  further  citation  is  made  establishing  the  same  rule,  of 
Harrison  y.Peck,  56  Barb.  252;  Beir  v.  Cook,  37  Hun,  38;  Norton 
V.  Brownsey,  10  St.  Rep.  800. 

Many  of  the  cases  cited  are  actions  in  equity,  as  the  rule  is  the 
same  in  both  actions,  and  in  Article  VII  the  method  of  restraining 
a  nuisance  is  considered,  as  it  may  be  invoked  pending  the  action 
at  common  law  under  the  provisions  of  the  Code. 

An  action  in  equity  is  in  every  respect  preferable  and  should, 
unless  a  jury  trial  is  desired,  be  adopted  instead  of  the  action 
given  by  the  Code.  The  authorities  cited  will,  however,  be 
equally  valuable  in  the  equity  suit  and  the  statutory  action. 


ARTICLE    II. 
When  the  Action  Will  Lie.     §  1660. 

§  1660.  When  action  may  be  brought. 

An  action  for  a  nuisance  may  be  maintained  in  any  case,  where  such  an  action 
might  have  been  maintained  under  the  laws  in  force,  immediately  before  this 
act  takes  effect. 

The  provisions  of  section  1660  refer  to  the  common  law  action 
of  nuisance,  that  is  to  say,  either  to  an  action  on  the  case  for 
damages,  or  to  an  action  to  abate  a  nuisance.  An  equity  action 
to  restrain  a  wrong  constituting  a  nuisance,  is  not  triable  by  a  juiy 
wdthin  the  provisions  of  §  968  of  the  Code.  GoldscJnnidt  v.  Nezv 
York  Steam  Co.  7  App.  Div.  317,  citing  Cogswell  v.  New  York  etc. 
Co.  105  N.  Y.  319,  and  commenting  upon  Lefrois  v.  County  of 
Monroe,  88  Hun,  109. 

No  remedy  will  lie  to  redress  a  consequential  injury  necessarily 
resulting  from  the  lawful  exercise  of  a  right  granted  by  the  sover- 
eign power  of  the  State  or  authorized  by  competent  municipal 
authority.  Renwick  v.  Morris,  7  Hill,  575.  The  Legislature  may 
authorize  acts,  wdiich  would  otherwise  be  nuisances,  so  that  they 
become  lawful.  Leigh  v.  Wcstcrvclt,  2  Duer,  618;  Williams  v. 
N.  Y.  C.  R.  R.  Co.  18  Barb.  222;  Masterson  v.  Short,  7  Robt.  241  ; 
Cogszvcll  V.  N.  Y.  &  N.  H.  R.  R.  Co.  48  Supr.  Ct.  31  ;  People  v. 
Latv,  34  Barb.   494;  People  v.  N.  Y.  Gaslight  Co.  6  Lans.  467; 


NUISANCE.  519 


Art.  2.     When  the  Action  Will  Lie. 


Davis  V.  The  Mayor,  14  N.  Y.  507;  Phoenix  v.  Commissioners,  12 
How.  I  ;  Radcliff's  Executors  v.  Mayor,  4  N.  Y.  195. 

The  statutory  sanction  which  will  justify  an  injury  by  a  corpo- 
ration to  a  private  person  without  making  compensation  therefor, 
and  without  the  consent  of  the  owner,  must  be  express  or  given 
by  clear  and  unquestionable  implication  from  the  powers  ex- 
pressly conferred,  so  that  it  can  fairly  be  said  that  the  Legislature 
contemplated  the  doing  of  the  very  act  which  occasioned  the 
injury.  It  may  not  be  presumed  from  a  general  grant  of  author- 
ity, where  the  terms  of  the  statute  giving  such  authority  are  not 
imperative,  but  permissive.  This  does  not  confer  license  to  com- 
mit nuisance,  although  what  is  contemplated  by  the  statute  can- 
not be  done  without  so  doing.  Cogswell  v.  A^.  K,  N.  H.  &  H. 
R.  R.  Co.  103  N.  Y.  10;  citing  Baltimore  &  Potomac  R.  R.  Co.  v. 
Fifth  Avenue  Baptist  Church,   108  U.  S.  317. 

The  rule  that  nuisance  arises  from  the  violation  of  a  common 
law,  and  not  from  the  violation  of  a  public  statute,  applies  only 
where  the  statute  creating  a  right  or  imposing  an  obligation 
affixes  a  penalty  for  its  violation  or  gives  a  specific  remedy  which, 
by  the  terms  of  the  statute  or  by  construction,  is  exclusive,  and 
has  no  application  where  the  statute  itself  prescribes  that  a  par- 
ticular act  or  the  property  used  for  a  noxious  purpose  shall  be 
deemed  a  nuisance.  Lawton  v.  Steele,  1 19  N.  Y.  226,  29  St.  Rep. 
581,  6  Supp.  15. 

A  public  nuisance  is  one  which  affects  the  rights  of  the  com- 
munity in  general,  and  not  the  one  particular  person.  Lansing  \. 
Smith,  8  Cow.  146.  As  a  place  of  amusement  kept  for  gain; 
Tanner  v.  Trustees,  5  Hill,  121  ;  or  anything  that  is  offensive  to 
the  morals  of  society;  Boom  v.  City  of  Utica,  2  Barb.  104;  or  an 
unlawful  erection  in  a  public  stream;  Hecker  w.Dock  Co.  13  How. 
549;  People  V.  Vanderbilt,  26  N.  Y.  287;  or  any  obstruction 
therein;  Moore  w.  Commissioners,  32  How.  184;  Mayor  v.  Baum- 
hiirger,  7  Robt.  219;  or  a  floating  storehouse.  Hart  v.  Albany, 
3  Paige,  213;  S.  C.  9  Wend.  571.  Any  obstruction  which  leaves 
the  navigation  of  a  port  less  convenient  or  safe  is  a  nuisance. 
People  V.  Norton,  5  Hun,  516;  s.  C.  64  N.  Y.  610.  So  are  tele- 
phone poles  erected  on  the  streets  of  a  city  in  such  a  way  as  to 
incommode  the  public.  People  v.  Metropolitan  T.  &  T.  Co.  64 
How.  120.  A  telegraph  cable  so  laid  as  to  interfere  with  naviga- 
tion.    Blanchard  v.  Western  Union  Tel.  Co.  60  N.  Y.  510.     The 


520 


NUISANCE. 


Art.  2.     When  the  Action  Will  Lie. 


construction  of  a  railroad  on  the  public  street  without  the  requi- 
site authority  is  a  public  nuisance.  Wetmore  v.  Story,  22  Barb. 
414;  Astor  V.  N.  V.  Arcade  Railway  Co.  3  St.  Rep.  188.  To 
authorize  the  construction  of  a  railroad  upon  or  over  a  highway, 
where  individuals  own  private  rights  or  interests  therein,  or  in  the 
soil  thereof,  not  only  must  the  public  right  or  lease  be  obtained, 
but  the  individual  rights  and  interests  must  be  lawfully  acquired  ; 
and  if  constructed  without  such  acquisition  the  builders  are  liable 
to  the  owners,  as  to  whom  the  railroad  is  a  continuing  nuisance. 
Uline  v."  N.  Y,  C.  &  H.  R.  R.  R.  Co.  loi  N.  Y.  98.  The  unau- 
thorized erection  and  operation  of  an  elevated  railroad  through 
the  streets  of  a  city  creates  a  public  nuisance.  Negus  v.  City  of 
Brooklyji,  10  Abb.  N.  C.  180;  Caro  v.  Metropolitan  E.  R.  R.  Co. 
46  Supr.  Ct.  138.  The  rule  in  Story  v.  N.  Y.  Elevated  R.  R.  Co. 
II  Abb.  N.  C.  226,  that  an  abutting  owner  is  entitled  to  dam- 
ages, if  light,  air,  and  access  are  interfered  with,  applies  where 
the  street  of  a  city  is  held  in  trust  for  public  use  as  a  highway,  as 
well  as  where  the  fee,  subject  to  such  easement,  is  in  the  abutting 
owner.     Peyser  v.  A^.  Y.  Elevated  R.  R.  Co.  12  Abb.  N.  C.  275. 

One  who  carries  filth  in  sewers  through  a  water-course  on  lands 
of  another  is  not  relieved  from  responsibility  because  the  injury 
is  aggravated  by  an  obstruction  of  the  stream.  Noonan  v.  City 
of  Albany,  79  N.  Y.  470.  A  building  in  a  large  city,  so  con- 
structed that  snow  will  fall  from  it  to  the  sidewalk,  is  a  public 
nuisance.  Walsh  v.  Mead,  8  Hun,  387.  A  house  kept  as  a 
house  of  ill-fame,  and  resort  of  disreputable  persons,  is  a  public 
nuisance.  Ely  v.  Supervisors  of  Niagara  Co.  36  N.  Y.  297.  The 
construction  and  maintenance  of  a  street  railway  by  any  individual 
or  association  of  individuals,  without  legislation,  is  a  public 
nuisance,  and  subjects  those  maintaining  it  to  a  private  action,  in 
favor  of  any  person  sustaining  special  injury  therefrom.  Fanning 
v.  Osborne,  102  N.  Y.  441.  As  is  a  tenement  house  in  a  filthy 
condition  and  calculated  to  breed  disease.  Meeker  v.  Van  Rens- 
selaer, 15  Wend.  397. 

A  bridge  erected  across  Broadway,  in  the  city  of  New  York, 
was  so  held.  Knox  v.  Nezv  York,  55  Barb.  404.  The  keeping  of 
a  large  quantity  of  gunpowder  in  a  wooden  building  insufficiently 
secured,  and  near  other  buildings,  is  a  public  nuisance.  Myers  v. 
Malcolm,  6  Hill,  292.  See  Bradley  v.  People,  56  Barb.  72.  So 
is  an  obstruction  in  a  highway.     Harlow  v.  Humnienston,  6  Cow. 


NUISANCE,  521 


Art.  2.     When  the  Action  Will  Lie. 


89;  Lansing  V.  Smith,  8  Cow.  146;  Davis  v.  The  Mayor,  14  N.  Y. 
506.  An  opening  in  a  sidewalk  in  a  public  street  left  so  as  to  be 
dangerous  to  travelers.  Irwin  v.  Wood,  4  Robt.  438;  Irwin  v. 
Fowler,  5  Robt.  482.  But  where  such  an  opening  has  been  made 
with  the  consent  of  a  municipality,  it  is  not,  in  and  of  itself,  a 
nuisance,  but  the  consent  being  conditioned  on  certain  modes  of 
use,  if  the  opening  is  kept  unguarded  it  becomes  a  nuisance. 
Jennings  v.  Van  Schaick,  108  N.  Y.  530.  Using  a  street  for  busi- 
ness purposes  so  as  to  obstruct  travel  is  a  nuisance.  People  v. 
Cunningham,  i  Den.  524.  No  length  of  enjoyment  will  legalize 
a  public  nuisance.  Rochester  v.  Erickson,  46  Barb.  92 ;  Ogdens- 
burgh  V.  Lovejoy,  2  T.  &  C.  83,  affirmed,  10  Alb.  L.  J.  237; 
Snow  V.  Williams,  6  Hun,  468;  Delaney  v.  Blizzard,  7  Hun,  7; 
Dygert  v.  Schenck,  23  Wend.  446;  Patton  v.  N.  V.  El.  R.  R.  Co. 
3  Abb.  N.  C.  306 ;  St.  Vincent  Orphan  Asylum  v.  Troy,  y6  N.  Y. 
108;  Driggs  V.  Phillips,  103  N.  Y.  -j-] ;  Van  Rensselaer  v.  Albany, 
15  Abb.  N.  C.  457.  If  a  party  may  acquire  a  prescriptive  right 
to  continue  a  nuisance,  it  can  only  be  by  continuous  use  for 
twenty  consecutive  years ;  no  occupation  short  of  that  time  is  a 
bar  to  a  complaint,  unless  by  some  act  or  omission  he  has  induced 
the  party  causing  the  nuisance  to  incur  large  expenditure  or  take 
some  action  on  which  an  estoppel  can  be  based.  Campbell  v. 
Seaman,  63  N.  Y.  568. 

A  wrong  or  unlawful  motive  in  erecting  a  structure,  otherwise 
lawful,  does  not  make  the  structure  itself  unlawful  or  a  nuisance. 
Chenango  Bridge  Co.  v.  Paige.,  83  N.  Y.  178.  An  unlawful 
use  thereof  may  be  complained  of  and  restrained,  but  the 
structure  cannot  be  destroyed.  Building  materials  depos- 
ited in  the  street  arc  not  nuisances  if  properly  guarded,  and 
offering  no  obstruction  or  unreasonable  peril  to  travelers. 
Village  of  Seneca  Falls  v.  Zalinski,  8  Hun,  571.  Obstruc- 
tions made  in  aid  of  commerce,  which  do  not  materially  in- 
jure free  navigation,  are  not  nuisances.  Delaware  &  H.  C.  Co. 
V.  Lawrence,  2  Hun,  163,  affirmed,  56  N.  Y.  612.  Branches  of  a 
tree  overhanging  the  road  are  not  a  nuisance  without  proof  of 
special  damages.  Countryman  v.  Lighthill,  24  Hun,  405.  A 
railway  bridge  constructed  under  legal  authority  is  not  a  nuisance. 
Crooke  V.  Brooklyn,  etc.  R.  R.  Co.  8  Week.  Dig.  252.  The  keep- 
ing of  gunpowder  is  not  necessarily  a  nuisance  ;  it  is  a  question  for 
the  jury.     Heeg  v.   Licht,   80   N.    Y.    579.     A  conductor  pipe. 


522 


NUISANCE. 


Art.  2.     When  the  Action  Will  Lie. 


designed  to  carry  water  from  the  roof  to  the  ground,  when  con- 
structed with  due  care,  is  not  unlawful,  although  its  mouth  is 
toward  the  sidewalk  and  it  discharges  thereon.  Wenzlick  v.  Mc- 
Cotter,  87  N.  Y.  122. 

A  sign  around  a  telegraph  pole  in  the  street,  close  to  the  curb, 
is  not  necessarily  a  public  nuisance.  Goldsmith  v.  Jones,  43 
How.  415.  An  encroachment  upon  a  highway,  which  does  not 
prevent  its  use  for  ordinary  purposes,  is  not  a  nuisance  per  se. 
Howard  v.  Robbins,  i  Lans.  63.  The  owners  of  swampy  lands  are 
not  guilty  of  a  public  nuisance  by  refusing  to  drain  them.  Wood- 
ruff \.  Fisher,  17  Barb.  224.  A  dangerous  wall,  remote  from  the 
street,  is  not  a  public  nuisance  so  as  to  render  the  municipality 
liable  for  the  consequences  of  a  failure  to  direct  its  removal. 
Cain  V.  Syracuse,  29  Hun,  105.  A  dam  across  a  stream,  which 
is  technically  navigable,  is  not  a  nuisance,  although  exceeding  the 
authorized  height  and  not  provided  with  a  lock  as  provided  by 
statute.  Groat  v.  Moak,  94  N.  Y.  115.  A  railroad  company  is 
not  guilty  of  a  nuisance  in  using  its  premises  in  a  proper  and 
legitimate  manner.  Briesen  v.  Long  Island  R.  R.  Co.  31  Hun, 
112.  What  is  mere  negligence  in  neglecting  to  remove  ice  and 
snow  from  a  sidewalk,  does  not,  of  itself,  constitute  a  nuisance. 
Dicker  son  v.  Mayor  of  New  York,  92  N.  Y.  584.  A  dam,  where 
a  navigable  river  is  incapable  of  navigation,  is  not  a  nuisance. 
Matter  of  State  Reservation  at  Niagara,  37  Hun,  537.  A  scaffold 
suspended  from  the  roof  of  a  house,  for  the  purpose  of  making 
necessary  repairs,  is  not  a  nuisance.  Hexamer  v.  Webb,  loi 
N.  Y.  377.  One  doing  business  on  a  street  in  a  populous  city 
has  the  right  to  temporarily  obstruct  the  sidewalk  in  front  of  his 
place  of  business  for  the  purpose  of  loading  merchandise,  the 
right,  however,  to  be  exercised  in  a  reasonable  manner  so  as  not 
unnecessarily  to  incumber  the  sidewalk.  When  thus  reasonably 
exercising  such  right,  the  occupant  of  the  premises  is  not  required 
to  furnish  those  passing  upon  the  sidewalk  a  safe  passage  around 
the  obstruction.  Welsh  v.  Wilson,  loi  N.  Y.  254.  A  tradesman 
may  convey  goods  from  the  street  to  his  adjoining  store  and  from 
the  store  to  the  street,  and  for  that  purpose  may  temporarily 
obstruct  passage  on  the  sidewalk,  but  such  obstruction  must  not 
only  be  reasonable  with  reference  to  the  business  of  the  trades- 
man but  also  with  reference  to  the  rights  of  the  public.  Callanan 
V.  Oilman,  107  N.  Y.  360. 


NUISANCE.  523 


Art.  2.      When  the  Action  Will  Lie. 


Where  there  is  a  conflict  of  evidence  as  to  whether  defendant 
had  a  prescriptive  right  to  use  flush  boards  on  his  dam,  the  ques- 
tion is  one  for  the  jury.  An  owner  of  a  dam  who  raises  the  same 
and  thus  floods  the  land  of  a  superior  proprietor  is  hable  for  the 
damage  thus  occasioned.  Where  it  is  shown  that  former  ov\^n- 
ers  of  a  dam  used  flush  boards  thereon,  it  is  competent  to  prove 
in  rebuttal  that  they  paid  for  the  right  to  do  so.  Coloney  v. 
Farrow,  91  Hun,  82,  36  N.  Y.  Supp.  164,  71  St.  Rep.  100. 

One  who  engages  in  blasting  rock  is  bound  to  exercise  reason- 
able care  to  protect  adjoining  property  from  injury,  and  where  he 
uses  large  and  numerous  concurrent  blasts  which  cause  injury, 
when  small  ones  would  have  answered  the  purpose,  although  not 
so  expeditiously  or  with  as  much  profit  to  him,  he  is  liable  for  the 
damages  occasioned  thereby.  Nczvellw.  Woolfolk,gi  Hun,  21 1, 
36  N.  Y.  Supp.  327,  71  St.  Rep.  129. 

Sections  24  and  28  of  the  General  Railroad  Act  of  1850  do  not 
authorize  a  railroad  company,  without  the  sanction  of  the  courts 
or  public  authorities,  to  obstruct  and  practically  discontinue  a 
street,  to  the  injury  of  the  property  owners,  although  it  substi- 
tutes another  at  a  short  distance  therefrom.  Bnchhol.z  v.  N.  Y. 
L.  E.  &  W.  R.  R.  Co.  148  N.  Y.  640,43  N.  E.  Rep.  76,  reversing 
66  Hun,  377,  21  N.  Y.  Supp.  503,  50  St.  Rep.  670. 

The  use  of  a  barn  as  a  livery  stable  so  near  plaintiff's  awelling 
as  to  render  the  use  of  the  dwelling  disagreeable,  uncomfortable 
and  unwholesome,  is  a  private  nuisance.  Robinson  v.  Smith,  25 
St.  Rep.  647,  7  Supp.  38. 

Where  a  covenant  in  a  deed  is  of  such  a  nature  as  to  create  an 
easement  which  passes  to  a  lessee  as  an  appurtenance,  an  unlaw- 
ful obstruction  of  the  easement  is  a  continuing  nuisance,  for 
which  such  lessee  may  recover  damages  independently  of  the 
relation  of  the  parties  with  respect  to  the  covenant.  The  unlaw- 
ful management  and  operation  of  a  railroad  which  causes  damage 
to  adjoining  premises  is  a  nuisance  for  which  the  lessee  of  such 
premises  may  recover  damages.  Avery  v.  New  York  Central 
R.  R.  Co.  26  St.  Rep.  279,  7  Supp,  341.  If  one  carry  on  a  lawful 
trade  or  business  in  such  a  manner  as  to  prove  a  nuisance  to  his 
neighbor,  he  must  answer  in  damages,  and  it  is  not  necessary  to  a 
right  of  action  that  the  owner  shall  be  driven  from  his  dwelling,  it 
is  enough  that  the  enjoyment  of  life  and  property  be  rendered 
uncomfortable.      It   is  not  necessary  to  prove   negligence  in  the 


524  NUISANCE. 


Art.  2.     When  the  Action  Will  Lie. 


conduct  of  such  offensive  business  in  order  to  sustain  an  action  for 
injuries  of  such  a  character,  the  damages  in  such  case  being  a 
necessary  consequence  of  or  incident  to  the  business  itself.  The 
statutory  authority  which  will  justify  an  injury  to  private  prop- 
erty and  afford  immunity  for  acts  which  would  otherwise  be  a 
nuisance,  must  be  express  or  must  be  a  clear  and  unquestionable 
implication  from  the  powers  expressly  conferred,  and  it  must  ap- 
pear that  the  Legislature  contemplated  the  doing  of  the  very  act 
which  occasioned  the  injury.  The  fact  that  a  gas  company  is  in- 
corporated and  empowered  to  carry  on  the  business  of  manufac- 
turing and  distributing  gas,  does  not,  therefore,  take  it  out  of 
the  operation  of  the  rule  of  law  applicable  to  ordinary  common 
law  nuisances  so  far  as  the  conduct  of  its  business  is  concerned 
upon  the  premises  acquired  for  that  purpose.  Bolian  v.  Port 
Jcrvis  Gas  Co.    122   N.   Y.  18,  33  St.    Rep.  246. 

The  rule  that  legal  liability  in  damages  cannot  result  from  acts 
done  by  a  corporation  in  the  performance  of  a  public  duty,  by 
express  legislative  authority  resulting  in  consequential  injury  to 
others,  and  which  as  between  individuals  would  be  regarded  as  a 
nuisance,  is  subject  to  the  exception  that  the  authority  which  will 
shelter  an  actual  nuisance  must  be  express  or  a  clear  and  unques- 
tionable implication  from  powers  conferred,  certain  and  unambigu- 
ous and  such  as  to  show  that  the  Legislature  must  have  intended 
and  contemplated  the  doing  of  the  very  act  in  question.  Author- 
ity from  the  Legislature  to  a  municipal  corporation  to  acquire 
property  and  construct  thereon  a  building  and  machinery  for  the  '/ 

purpose  of  dumping  waters  will  not  authorize  it  to  construct  such 
building  so  near  to  adjoining  property  as  to  injuriously  affect  it 
by  the  noise  and  vibration.  Morton  v.  Mayor  of  New  York,  140 
N.  Y.  207,  55  St.  Rep.  413.  iP 

It  is  also  said  in  Hill  v.  The  Mayor,  139  N.  Y.  495,  that  the 
rule  that  a  municipal  corporation  engaged  in  the  performance  of 
a  public  duty,  upon  which  the  public  health  and  comfort  depends, 
and  acting  under  authority  of  the  Legislature,  is  not  liable  for 
consequential  damages  to  others,  even  though  its  act  would 
amount  to  a  nuisance  as  between  individuals;  this  authority 
must  be  express  or  a  clear  and  unquestionable  implication  from 
powers  conferred  ;  it  must  be  certain  and  unambigious,  and  such  as 
to  show  that  the  Legislature  must  have  contemplated  the  very 
act  in  question.     So,  in  Cogswell  v.  New  York,  New  Haven  & 


NUISANCE.  525 


Art.  2.     When  the  Action  Will  Lie. 


Hartford  R.  R.  Co.  103  N.  Y.  10:  "But  the  statutory  sanction 
which  will  justify  an  injury  to  private  property  must  be  express 
or  must  be  given  by  clear  and  unquestionable  implication  from 
the  powers  expressly  conferred,  so  that  it  can  fairly  be  said  that 
the  Legislature  contemplated  the  doing  of  the  very  act  which 
occasioned  the  injury." 

In  Mundy  v.  Nctv  York,  Lake  Erie,  etc.  R.  R.  Co.  75  Hun,  479, 
57  St.  Rep.  367,  27  Supp.  469,  it  was  held  that  as  the  defendant 
justified  under  a  statutory'  right,  such  authority  must  be  explicit 
to  support  the  impairment  of  private  property.  In  Van  Duzer 
V.  Elmira,  Cortland,  etc.  R.  R.  Co.  75  Hun,  487,  57  St.  Rep. 
355,  27  Supp.  474,  the  same  rule  was  held. 

Municipal  corporations  are  liable  for  their  acts  in  creating  or 
maintaining  a  nuisance.  Bolton  v.  Village  of  New  Rochelle,  84 
Hun,  281,  32  Supp.  442,  65  St.  Rep.  717.  Municipal  consent  to 
the  maintenance  of  a  coal  hole  in  a  sidewalk  may  be  inferred  from 
its  uninterrupted  continuance  for  over  a  year  without  objection. 
Kiiechenmeister  v.  Brozvn,  13  Misc.  139,  34  Supp.  180,  68  St. 
Rep.  230.  User  for  twenty  years  of  a  cellar-way  extending  for 
about  five  feet  into  the  street,  without  apparent  objection  by  the 
city  authorities,  is  evidence  from  which  their  consent  to  its 
construction  may  be  inferred.  Jorgenson  v.  Squires,  144  N.  Y. 
280,  39  N.  E.  Rep.  373,  63  St.  Rep.  686,  affirming  66  Hun,  633, 
50  St.  Rep.  161,  21  Supp.  383.  No  right  to  maintain  a  public 
nuisance  can  be  obtained  by  prescription.  Kelley  v.  Mayor,  89 
Hun,  246,  affirming  6  Misc.  615,  56  St.  Rep.  845,  27  Supp.  164. 
Express  legislative  authority  is  requisite  to  justify  the  main- 
tenance of  a  dump  for  refuse  by  a  city  which  creates  a  nuisance 
resulting  in  special  injury  to  individuals,  and  they  in  such  case 
are  entitled  to  compensation  therefor.  Cornell  v.  Mayor  of 
New  York,    20  Supp.  314. 

Where  defendant  purchased  property  which  for  many  years  had 
an  inclined  passageway  excavated  in  the  sidewalk  to  lead  to  the 
basement  of  the  building,  and  had  leased  the  same,  and  while  it 
was  in  the  possession  of  a  tenant,  plaintiff  passing  along  the  side- 
walk fell  into  the  passageway,  Avhich  was  unguarded,  and  was 
injured,  it  was  held  that  the  depression  in  the  sidewalk  was  a 
nuisance  and  that  defendant,  by  leasing  the  premises  in  the  con- 
dition they  were,  was  responsible  for  its  maintenance  and  liable 
for  plaintifif's  injury.     McGrath  v.  Walker,  64  Hun,  179,  46  St. 


526  NUISANCE. 


Art.  2.     When  the  Action  Will  Lie. 


Rep.  158,  18  Supp.  915.  The  property  owner  who  avails  himself 
of  an  implied  license  to  make  an  opening  in  the  sidewalk,  does  so 
under  an  implied  condition  to  keep  it  in  a  safe  condition  and  is 
liable  for  injuries  to  third  persons  resulting  therefrom  in  case  the 
village  is  compelled  to  pay  therefor.  Trustees  of  Ca?iandaigiia 
V.  Foster,  81  Hun,  147,  30  Supp.  686,  62  St.  Rep.  639.  While 
the  owner  of  land  abutting  on  a  public  street  may,  owing  to  the 
necessities  of  the  case,  encroach  on  the  rights  of  the  public  to  a 
limited  extent  and  for  a  temporary  purpose,  the  obstruction  must 
be  reasonably  necessary  for  the  transaction  of  business  and  must 
not  unreasonably  interfere  with  the  rights  of  the  public.  Such 
an  owner  may  not  lawfully  supply  the  defects  in  his  premises  by 
fraudulently  monopolizing  the  sidewalk  in  front  thereof.  An 
unnecessary  or  unreasonable  use  of  a  sidewalk  or  street  to  the 
serious  inconvenience  of  the  public  is  a  nuisance  per  se.  Flynn  v. 
Taylor^  127  N.  Y.  596,  citing  Callanan  v.  Gilman,  107  N.  Y. 
360;    Welsh  V.  Wilson,  loi  N.  Y.  254. 

Maintaining  an  awning  attached  to  the  front  of  a  store  and  pro- 
jecting over  the  sidewalk  in  an  insecure  position,  is  a  nuisance, 
though  the  maintenance  of  the  awning  is  authorized  by  the  city. 
Morris  v.  Barrisford,  9  Misc.  14,  59  St.  Rep.  698,  29  Supp.  17, 
distinguishing  City  of  Rochester  v.  Campbell,  123  N.  Y.  405.  The 
temporary  use  of  coal  holes  in  the  sidewalk  for  other  purposes 
than  discharging  coal,  if  required  by  peculiar  exigencies,  as  any 
construction  ordered  by  the  Board  of  Health,  does  not,  if  they 
are  guarded,  constitute  a  nuisance  per  se.  Maltbie  v.  Bolting,  6 
Misc.  339,  56  St.  Rep.  243,  26  Supp.  903.  An  action  for  injuries 
received  by  falling  down  a  vault  opening  in  the  sidewalk  was  held 
to  be  for  a  nuisance  and  not  for  a  negligent  injury  in  Jorgenson 
v.  Minister  of  Reformed  Loiv  Dutch  Church,  7  Misc.  i,  57  St. 
Rep.  842,  27  Supp.  318,  afifirming  23  Civ.  Pro.  R.  232,  26 
Supp.  876. 

The  keeping  of  gunpowder  or  explosives  in  a  place  where  it  is 
liable  to  cause  injury  to  adjacent  property  or  to  passers-by,  is  a 
private  nuisance  which  raises  a  liability  for  resulting  injury  irre- 
spective of  negligence  in  its  care.  Lounsbury  v.  Foss,  80  Hun, 
296,  61  St.  Rep.  829,  30  Supp.  89.  The  discharge  of  fireworks 
on  a  public  street  in  a  city,  is  a  nuisance /^r  se,  and  when  a  city, 
through  its  officers,  authorizes  it,  the  city  becomes  liable  for 
injury  resulting.     Spier  v.  City  of  Brooklyn,  4.6  St.  Rep.  561,  19 


NUISANCE.  527 


Art.  2.     When  the  Action  Will  Lie. 


Supp.  665,  affirming  45  St.  Rep.  261,  18  Supp.  170.  Where  de- 
fendant's smelting  furnace  was  shown  to  have  emitted  sparks  in 
the  ordinary  conduct  of  its  business,  and  plaintiff's  property  was 
ignited  and  burned  by  them,  it  was  held  that  a  verdict  in  his 
favor  should  be  sustained  whether  it  was  expressly  found  to  be  a 
nuisance  or  not.  Ca^npbell  v.  United  States  Foundry  Co.  73  Hun, 
576,  57  St.  Rep.  265,  26  Supp.  165. 

A  private  corporation,  in  constructing  its  bridge  over  a  river, 
undertook  to  maintain  it  for  the  free  use  of  foot  passengers,  and 
erected  a  platform  approach  on  the  highway  leading  to  the  foot- 
way of  the  bridge ;  Jicld,  that  the  corporation  was  liable  for  in- 
juries received  by  plaintiff  on  the  platform  and  due  to  the  defective 
condition  of  its  flooring,  unless  plaintiff's  negligence  contributed 
to  the  injury,  since  defendant's  structure  was  an  interference 
with  the  highway  and  imposed  upon  defendant  an  obligation  to 
keep  same  in  repair,  and  that  failure  to  do  so  constituted  nuisance. 
Murphy  v.  Suburban  Rapid  Transit  Co.  40  St.  Rep.  228,  15 
Supp.  837. 

Under  an  allegation  that  plaintiff's  horse  was  injured  by  run- 
ning against  a  barbed  wire  fence  which  defendant  had  erected 
within  the  highway,  it  was  held  that  if  the  fence  was  in  the  high- 
way it  was  a  nuisance  for  which  an  action  would  lie.  Anderson  v. 
Young-,  66  Hun,  240,  49  St.  Rep.  480,  21  Supp.  172.  The  test  of 
the  permissible  use  of  one's  own  land  is  not  whether  the  use  or  the 
act  causes  injury  to  his  neighbor's  property,  or  that  the  injury  was 
a  natural  consequence,  or  that  the  act  is  in  the  nature  of  a 
nuisance,  but  the  inquiry  is,  was  the  act  or  use  a  reasonable 
exercise  of  the  dominion  which  the  owner  of  the  property  has  by 
virtue  of  his  ownership  over  his  property,  having  regard  to  all 
interests  affected,  his  own  and  those  of  his  neighbors  and  having 
in  view  also  public  policy.  Booth  v.  Rome,  Watertown  &  Ogdens- 
burg  R.  R.  Co.  140  N.  Y.  267,  55  St.  Rep.  656. 

In  an  action  for  damages  occasioned  to  plaintiff's  land  by  a 
flood  claimed  to  have  been  caused  by  an  embankment  maintained 
by  defendant  near  the  land,  which  obstructed  the  natural  flow  of 
the  water  of  a  river,  and  where  it  appeared  that  a  culvert  placed 
by  defendant's  predecessor  in  the  embankment  for  the  escape  of 
water  accumulated  by  a  freshet,  was  insufficient ;  it  was  held  that 
the  question  as  to  the  cause  of  the  flood  be  properly  submitted  to 
the  jury  and  they  were  to  determine  whether  the  freshet  was  an 


528  NUISANCE. 


1 


Art.  2.     When  the  Action  Will  Lie. 


extraordinary  one  which  could  not  have  been  anticipated. 
Mundy  v.  New  York,  Lake  Erie,  etc.  R.  R.  Co.  75  Hun,  479,  57 
St.   Rep,   367,  27  Supp.  469. 

Where  a  street  railway  company  created  an  obstruction  in  the 
street  by  use  of  its  snow  plow,  so  that  an  injury  was  caused  by 
such  obstruction,  a  finding  was  justified  that  the  obstruction  was 
an  actionable  nuisance.      Schrank  v.  Rochester  R.  Co.  83  Hun,  290, 
31    Supp.  922,  64  St.  Rep.  754.     A  railroad   franchise  gives  the 
company  no  right  to  maintain  a  large  coal  pocket  in  the  neigh- 
borhood of  a  closely  populated  section  of  a  city  in  such  manner 
as  to  constitute  a  private  nuisance.     Spring  v.  D.  L.  &  IV.  R.  R. 
Co.  88  Hun,  385,  34  Supp.  810,  68  St.  Rep.  821.     The  defendant 
had  a  powerful  steam  whistle  on  its  factory  near  a  railroad  station 
and  only  a  few  feet  above  the  platform  of  the  station,  and  the  re- 
peated sounding  of  the  whistle  frightened  the  horse  of  the  plain- 
tiff, who  was  delivering  a  load  at  the  station,  causing  the  horse 
to  become  ungovernable  whereby  plaintiff  was  thrown   from  his 
wagon  and  injured;    hcld,t\vaX  defendant  was  liable   for  the  in- 
jury irrespective  of  the  question  of  plaintiff's  negligence.     Albee 
v.  Chappaqiia  Shoe  Manufacturing  Co.  62  Hun,  223,  42  St.  Rep. 
566,  16  Supp.  687.     A  landlord  who  lets  premises  on  which  there 
is  an  existing  nuisance   of  which   he  has,  or  by  the  use   of  dili- 
gence could  have  obtained  knowledge,  is  liable  for  injuries  to  the 
tenant  or  his  family   occasioned   thereby   without   negligence  on 
their  part.     Schmidt  v.   Cook,    12  Misc.  449,  33  Supp.  624,  Gy  St. 
Rep.  330.     No  lapse  of  time  or  mere  inaction  on  the  part  of  the 
owner  of  real  estate  during  the   erection    and  maintenance  of  a 
nuisance  or  unlawful  structure  injurious  to  his  rights,  is  sufficient 
to  defeat  his   rights  to    damages    unless  by  a  continuance  long 
enough  to  effect  a  change  of  title  in  the  property  injured,  and  so 
long  as  the  legal  right  exists,  the  owner  is  entitled  to  maintain  his 
action  in  equity  to  restrain   the  violation  of  his  rights.      Galway 
v.  Metropolitan  Elevated  Ry.  Co.   128  N.  Y,  132,  affirming  35  St. 
Rep.  628,   13  Supp.  47, 

Where  plaintiff,  who  occupied  a  house  adjoining  the  one  owned 
and  rented  by  defendant,  went  to  defendant's  house  to  get  her 
children,  who  had  passed  through  an  opening  in  the  boundary 
fence  in  the  rear  to  play  in  defendant's  yard,  and  coming  down 
defendant's  steps  with  them,  fell  through  a  defective  step,  of  the 
condition  of  which  defendant  had  notice,  it  was  held  that  plaintiff 


NUISANCE.  529 


Art.  2.     When  the  Action  Will  Lie. 


was  on  defendant's  premises  as  a  mere  licensee,  as  to  her  the 
defect  was  a  nuisance,  and  that  she  could  not  recover  damages 
from  defendant  for  her  injury.  Sterger  v.  Van  Sicklen,  132  N.  Y. 
499,  44  St.  Rep.  863. 

Negligence  of  the  defendant  is  not  ordinarily  an  essential  ele- 
ment of  an  action  for  damages  sustained  by  reason  of  a  nuisance. 
Lamming  v.  Galusha,  47  St.  Rep.  831,  reversing  63  Hun,  32,  43 
St.  Rep.  592,  22  Civ.  Pro.  R.  16,  17  Supp.  328.  Temporary  occu- 
pation of  a  street,  the  fee  of  which  was  in  the  defendant,  for  the 
purpose  of  laying  a  water  pipe,  is  not  a  nuisance.  Dexter  v. 
Riverside  and  Osivcgo  Mills,  39  St.  Rep.  933,  15  Supp.  374.  A 
stream  not  naturally  navigable,  the  water  of  which  is  set  back 
by  a  dam  erected  by  private  parties  at  the  foot  of  a  lake 
into  which  it  flows,  so  that  it  can  be  navigated,  does  not  thereby 
become  a  public  navigable  stream,  and  a  highway  bridge  erected 
across  it  is  not  a  public  nuisance.  Ten  Eyck  v.  Town  ofWarwicky 
75  Hun,  562,  27  Supp.  536,  59  St.  Rep.  636.  The  owners  of  a 
pier  who  become  such  during  the  running  of  a  valid  outstanding 
lease,  are  not  responsible  for  a  nuisance  created  thereon  during 
the  existence  of  a  precedent  estate,  where  they  have  had  no 
notice  thereof.  Before  a  grantee  or  devisee  of  property  upon 
which  there  is  an  existing  nuisance  can  be  held  for  damages, 
he  must  have  notice  of  the  nuisance  and  a  reasonable  time  to 
abate  it.  Ahearn  v.  Steele,  115  N.  Y.  203,  26  St.  Rep.  295. 
The  erection  and  operation  of  steam  pumps  by  a  railroad  com- 
pany near  a  highway,  as  a  necessary  incident  to  the  operation  of 
the  railroad,  being  within  the  franchise  granted  by  the  Legis- 
lature under  the  General  Railroad  Act,  held,  not  to  be  in  itself 
a  nuisance,  and  on  the  facts  not  actionable  as  such.  Pettit  v. 
N.  V.  Central,  etc.  R.  R.  Co.  80  Hun,  86,  61  St.  Rep.  718,  29  Supp. 
1137.  A  superstructure  across  railroad  tracks  of  a  height  in- 
suflficient  to  allow  brakemen  on  freight  trains  to  stand  on  the 
cars  while  passing  under  it,  is  not  a  nuisance /rr  se.  Neffv.  Nezu 
York  Central  &  Hudson  River  R.  R.  Co.  80  Hun,  394,  62  St.  Rep. 
50,  30  Supp.  323.  A  string  piece  used  to  cover  a  water  pipe 
leading  to  buildings  on  a  pier  and  to  prevent  teams  from  colliding, 
is  not  a  nuisance  j^^cr  sc.  Gottsberger  v.  Mayor,  9  Misc.  349,  61 
St.  Rep.  247,  29  Supp.  592. 

[Special  Actions  —  34.] 


530  NUISANCE. 


Art.  3.     Who  Can  Maintain  the  Action. 


ARTICLE   III. 

Who  Can  Maintain  the  Action. 

Public  or  common  nuisance  affects  the  community  at  large  or 
some  considerable  portion  of  it,  and  private  nuisance  affects  only 
one  person  or  a  determinate  number  of  persons.  Amer.  Ency.  of 
Law,  Article  Nuisance,  page  926,  citing  Lansing  v.  Smith,  8 
Cow.  146. 

The  people,  through  the  attorney-general,  may  maintain  an  ac- 
tion for  the  removal  of  an  alleged  nuisance.  People  v.  Metropolitan 
T.  &■  T.  Co.  64  How.  120,  II  Abb.  N.  C.  304,  citing  People  v. 
Vanderbilt,  26  N.  Y.  287,  holding  that  a  nuisance  can  be  abated 
at  the  suit  of  the  people  irrespective  of  the  question  whether  any 
damage  arises  therefrom.  But  an  individual  cannot  maintain  an 
action  for  the  abatement  of  a  public  nuisance.  Spader  v.  New 
York  Elevated  R.  R.  3  Abb.  N.  C.  467.  Since  a  party  must  sus- 
tain some  specific  damage  peculiar  to  himself  before  he  can 
maintain  such  action.  Pierce  v.  Dart,  7  Cow.  609.  Therefore  a 
riparian  owner  cannot  maintain  an  action  for  the  continuous 
mooring  of  rafts  to  his  land  so  as  to  be  an  obstruction  to  the  river, 
as  it  is  a  public  nuisance.  Moore  v.  Jaekson,  2  Abb.  N.  C.  211. 
Owners  of  a  church  cannot  maintain  an  action  for  a  nuisance 
caused  by  noise  of  a  railroad.  First  Baptist  Church  v.  Utica  & 
Schenectady  R.  R.  Co.  6  Barb.  313,  although  the  contrary  is  held 
in  First  Baptist  Church  v.  Schenectady  &  Troy  R.  R.  Co.  5 
Barb.  79. 

The  rule  is  that  an  individual  cannot  maintain  a  private  action 
for  damages  on  account  of  a  public  nuisance,  unless  the  injury 
done  to  him  be  direct  or  special  or  such  as  is  not  common  to 
others  affected  by  the  nuisance.    Dougherty  v.  Bunting,  i  Sandf.  i. 

It  seems  that  the  mere  fact  of  a  business  being  carried  on 
which  may  be  shown  to  be  immoral  and  therefore  prejudicial  to 
the  neighborhood,  furnishes  of  itself  no  ground  for  equitable 
interference  at  the  suit  of  a  private  person,  although  the  use  of 
the  property  may  be  unlawful  or  unreasonable,  unless  special 
damage  can  be  shown,  a  neighboring  property  owner  cannot  ha\'e 
a  private  right  of  action,  and  that  only  the  public  authorities  acting 
in  the  common  interest  can  interfere  for  the  suppression  of  a  com- 
mon nuisance,  and  an  unlawful  use  of  property  which  renders  the 


NUISANCE.  531 


Art.  3.     Who  Can  Maintain  the  Action. 


premises  of  a  neighbor  unfit  for  comfortable  or  respectable  occu- 
pation or  enjoyment,  is  a  private  nuisance  against  which  the  pro- 
tection of  the  court  may  be  invoked,  although  the  use  complained 
of  also  constitutes  public  nuisance.     Cranfordv,  Tyrell,  128  N. 

Y.  343. 

A  hotel  owner  whose  business  has  been  injured  by  an  unlaw- 
ful obstruction  of  the  street,  by  which  travel  has  been  diverted, 
may  maintain  an  action  in  equity  to  restrain  the  continuance  of 
the  nuisance  and  for  damages.  Buchholz  v.  N.  V.,  L.  E.  &  W.  R. 
R.  Co.  148  N.  Y.  640,  43  N.  E.  Rep.  76,  reversing  66  Hun,  377,  21 
N.  Y.  Supp.  503,  50  St.  Rep.  670.  A  tenant  who  takes  his  lease 
with  knowledge  of  the  existence  of  a  public  nuisance  affecting 
the  premises  cannot  recover  damages  from  the  city,  unless  the 
nuisance  was  increased  in  some  way  during  his  tenancy.  Yoos  w. 
City  of  Rochester,  92  Hun,  481,  ^6  N.  Y.  Supp.  1072,  72  St.  Rep.  412. 
An  individual  cannot  maintain  an  action  for  a  public  nuisance 
without  proof  of  special  damages ;  but  any  special  damage,  how- 
ever small,  will  authorize  the  action.  Lansing  v.  Smith,  8  Cow. 
146;  S.  C.  4  Wend.  9;  Lansing  V.  Wisiuall,  5  Den.  213 ;  Fort  Plain 
Bridge  Co.  v.  Smith,  30  N.  Y.  44;  Anderson  v.  R.  L.  ete.  R.  R.  Co 
9  How.  553;  Dougherty  v.  Bunting,  i  Sandf.  i ;  DeLaney  v 
Blizzard,  7  Hun,  7;  Morgan  v.  City  of  Binghamton,  32  Hun,  602 
Burnett  v.  Bagg,  67  Barb.  154;  Trenor  v.  Jaekson,  46  How.  389 
Milhau  V.  Sharp,  27  N.  Y.  612;  Francis  v.  Sehoellkopf,  53  N.  Y 
152;  Negus  V.  City  of  Brooklyn,  i  Civ.  Pro.  R.  471  ;  Adams  v 
Pophani,  76  N.  Y.  41 1  ;  Gillispie  v.  Forrest,  18  Hun,  [lO;  Spader 
V.  N.  Y.  Elevated  R.  R.  Co.  3  Abb.  N.  C.  467;  Crooke  v.  Ander- 
son, 23  Hun,  266;  Callanan  v.  Oilman,  107  N.  Y.  360.  As  to 
what  constitutes  a  public  nuisance  and  what  must  be  averred,  sec 
Knox  V.  The  Mayor,  55  Barb.  404.  When  an  act,  besides  being  a 
public  nuisance,  will  be  specially  injurious  to  several  separate 
owners  of  real  estate,  they  can  join  in  an  action,  and  where  the 
.  question  is  one  of  common  or  general  interest  to  many  persons, 
or  where  the  persons  who  might  be  made  parties  are  many,  and  it 
may  be  impracticable  to  bring  them  all  before  the  court,  one  or 
more  may  sue  for  the  benefit  of  all,  and  the  various  allegations 
in  the  complaint,  in  relation  to  the  damages  which  will  be  caused 
to  such  other  parties,  are  not  irrelevant.  Astor  v.  N.  V.  Arcade 
Railway  Co.  3  St.  Rep.  188.  No  matter  how  numerous  the 
persons  may  be  who  have  sustained  a  peculiar  injury  or  damages, 


532  NUISANCE. 


Art.  3.     Who  Can  Maintain  the  Action. 


each  is  entitled  to  compensation  for  his  injury  and  has  a  cause  of 
action  against  the  persons  erecting  or  maintaining  the  nuisance. 
Francis  v.  Sckoclkopf,  53  N.  Y.  152. 

Private  nuisances  are  those  that  result  from  the  violation  of  pri- 
vate rights  and  produce  damages  to  but  one  or  a  few  persons. 
Wood  on  Nuisances,  §  15.  An  action  will  lie  by  reason  of  the 
erection  of  a  house  by  defendant  upon  the  line  of  plaintiff's  land, 
so  that  the  eaves  and  gutters  project.  Aiken  v.  Benedict,  39  Barb. 
400.  A  person  is  liable  for  the  injurious  consequences  that  may 
flow  from  the  invasion  of  a  legal  right  of  his  neighbor.  Tremain 
V.  Cohoes  Co.  2  N.  Y.  163;  Bellows  v.  Sackctt,  15  Barb.  96; 
Thomas  Y.  Kenyon,  i  Daly,  132;  Bensen  v.  Suarez,  28  How.  511. 
Failure  to  provide  suitable  gutters  so  that  the  building  of  another 
is  injured,  is  a  nuisance.  Gilbert  v.  Beach,  4  Duer,  423.  The 
erection  of  an  embankment  on  land,  so  as  to  cause  water  to  over- 
flow lands  of  another,  is  a  nuisance.  Goodale  v.  Tuttlc,  29  N.  Y. 
467.  Defective  closets  or  water  pipes,  or  negligent  maintenance 
of  anything  which  is  a  nuisance  is  actionable.  Robbins  v.  Moimt, 
4  Robt.  553  ;  Moore  v.  Goedel,  34  N.  Y.  527.  Negligent  blasting,  to 
the  injury  of  an  individual,  is  an  actionable  nuisance.  Hay  v. 
Cohoes  Co.  2  N.  Y.  159;  Tremain  v.  Cohoes  Co.  2  N.  Y.  163. 
Posting  placards  in  the  vicinity  of  plaintiff's  place  of  business, 
calculated  to  prevent  people  from  trading  with  him,  is  a  nuisance. 
Gilbert  v.  Mickle,  4  Sandf.  Ch.  357.  Allowing  a  horse  with  a 
contagious  disease  to  go  in  the  street  or  on  lands  of  another. 
Mills  V.  N.  Y.  &  H.  R.  R.  Co.  2  Robt.  326;  Fisher  v.  Clark, 
41  Barb.  329.  If  a  dam  sets  back  waters,  so  that  they  become 
stagnant  and  interfere  with  health,  it  is  a  nuisance.  People  v.  Town- 
send,  3  Hill,  479.  One  who,  in  damming  back  water,  detains  it 
unreasonably,  or  lets  it  off  in  unreasonable  quantities,  commits  a 
nuisance.  Merritt  v.  Brinkerhoff,  17  Johns.  306.  Whenever  the 
use  of  water  by  a  proprietor  is  in  excess  of  his  natural  right,  and 
operates  injuriously  to  another  owner,  it  is  a  nuisance.  Thomas  v.. 
Brackley,  17  Barb.  654;  Corning  v.  Troy,  40  N.  Y.  191.  See 
Clinton  v.  Myers,  46  N.  Y.  51 1  ;  Van  Hoesen  v.  Coventry,  10  Barb. 
508.  It  is  a  nuisance  to  interfere  with  the  drainage  of  lands; 
Trustees  v.  Youmans,  45  N.  Y.  362;  or  to  charge  the  soil  with 
water.  Pixlcy  v.  Clark,  35  N.  Y.  520.  A  slaughter-house,  if 
off'ensive,  is  a  nuisance.  Brady  v.  Weeks,  3  Barb.  157;  Catlinv. 
Valentine,  9  Paige's  Ch.  574:  DiiBois  v.  Budlong,   15  Abb.  154; 


NUISANXE.  533 


Art.  3.     Who  Can  Maintain  the  Action. 


Peck  V.  Elder,  3  Sandf.  126.  Whenever  any  offensive  trade 
becomes  injurious  an  action  lies.  Blunt  v.  Aike?i,  15  Wend.  522. 
A  livery  stable  or  barn  may  be  a  nuisance.  Pickard  v.  Collins^ 
23  Barb.  444.  So  noisome  smells,  if  offensive  to  the  senses,  or  so 
as  to  produce  physical  discomfort,  or  to  interfere  materially  with 
the  enjoyment  of  property.  Cropsey  v.  Murphy,  i  Hilt.  126; 
Brady  v.  Weeks,  3  Barb.  157;  Manhattan  Gaslight  Co.  v.  Barker, 
36  How.  258;  Francis  v.  Schoelkopf,  53  N.  Y.  152.  An  injury 
from  noxious  vapors  must  be  apparent  and  sensible  to  amount  to 
a  nuisance,  and  not  dependent  on  scientific  tests.  Vanderburg 
v,  Truax,  4  Den.  464.  Smoke  may  constitute  a  nuisance  where 
it  produces  tangible  injury,  as  discoloration  of  clothes,  as  from  a 
lime- kiln.  HutcJiins  v.  Smith,  63  Barb.  252.  Dense  masses  of 
smoke,  injurious  to  the  neighbors,  is  a  nuisance.  Campbell  v. 
Seaman,  2  T.  &  C.  231. 

Where  one  manufacturing  brick  upon  his  lands  uses  a  process 
by  which  noxious  gases  are  generated,  which  are  borne  by  the 
winds  upon  the  adjacent  lands  of  his  neighbor,  injuring  and  de- 
stroying vegetation,  this  is  a  nuisance  and  the  party  injured  may 
maintain  an  action.  It  is  immaterial  that  the  damage  is  done  to 
ornamental  trees  and  shrubbery  only;  articles  of  luxury  are  as 
much  under  the  protection  of  the  law  as  articles  of  necessity.  So 
it  is  immaterial  that  the  injury  is  only  occasional,  if  it  may  be 
expected  whenever  a  kiln  is  burning  unless  the  winds  blow  the 
poisonous  gases  away  from  plaintiff's  land.  It  does  not  affect 
plaintiff's  right  that  the  brick-yard  was  used  before  plaintiff  pur- 
chased his  land.  The  authorities  on  the  question  of  nuisance, 
particularly  as  applicable  to  brick  burning,  collated.  Campbell  v. 
Seaman,  63  N.  Y.  568.  To  constitute  a  nuisance  it  is  not  neces- 
sary that  the  noxious  trade  or  business  should  endanger  the  health 
of  the  neighborhood.  It  is  sufficient  if  it  produces  that  which  is 
offensive  to  the  senses  and  which  renders  the  enjoyment  of  life  or 
property  uncomfortable.  Catlin  v.  Valentine,  9  Paige,  575 ; 
Brady  v.  Weeks,  3  Barb.  157.  Every  person  has  a  right  to  have 
the  air  diffused  over  his  premises  in  its  natural  shape  free  from 
all  artificial  impurities.  No  one  has  a  right  to  interfere  with  the 
supply  of  pure  air  more  than  he  has  to  interfere  with  his  neigh- 
bor's soil ;  therefore,  every  use  of  one's  property  that  produces  an 
unwarrantable  impregnation  of  the  atmosphere  with  foreign  sub- 
stances to  the  detriment  of  another  is  a  nuisance  and  actionable 


534 


NUISANCE. 


Art.  3.     Who  Can  Maintain  the  Action. 


as  such.  This  is  true  whether  the  injury  arises  from  smoke, 
noxious  vapors,  noisome  smells,  or  from  loading  the  atmosphere 
with  dust,  chaff  or  other  foreign  substances.     Wood  on  Nuisances, 

>>  429- 

Tallow  factories  and  melting-houses  have  been  held  nuisances. 

Blunt  V.  Hay,  4  Sandf.  Ch.  363 ;  Hansee  v.  Hummond,  39  Barb. 
89;    Cropsey  V.  Murphy,  i  Hilt.  126.     A  tannery,  where  offensive 
stenches  are  liberated  is  a  nuisance.     Fisher  v.  Clark,  41  Barb. 
339;    Thomas  v.  Brackney,   17  Barb.  654;  Francis  v.  Schoelkopf, 
53  N.  Y.  152.     So  of  a  soap-boiling  establishment.     Hoivard  v. 
Lee,  3  Sandf.  281.     A  dam  erected  to  such  a  height  as  to  set  back 
water  upon  another's  mill  is  a  nuisance.     Rothery  v.  N.  V.  Rubber 
Co.  24  Hun,  172,  and  cases  cited.     A  steam  manufacturing   com- 
pany adjoining  dwelling-houses  which  jarred  and   injured  them, 
held  a  nuisance.     McKcon  v.   Sec,   51    N.   Y.    300.      A  structure 
which,  though  not  hurtful  to  health  or  noxious  to  the  senses,  inter- 
feres with  the  comfortable  enjoyment  of  life  or  property,  is  a  nui- 
sance within  the  rule  that  any  person  who  sustains  a  private  injury 
from  the  erection  or  continuance  of  a  nuisance  may  maintain  an 
action  therefor.       Trcnor  v.   Jackson,   15  Abb.   (N.   S.)   115.      A 
dog  in  the  habit  of  coming  on  plaintiff's  premises  i^nd  barking  and 
howling  about  his  dwelling  by  day  and  night,  to  the  great  annoy- 
ance of  his  family,  is  a  nuisance.     Brill  v.  Flagler,  23  Wend.  354. 
The  rule  is,  that  if  one  carry  on  a  lawful  business  in  such  a  way  as 
to  prove  a  nuisance  to  his  neighbor  he  is  answerable  in  damages. 
Fish  V.  Dodge,  4  Den.  311.     Where  the  plaintiffs  consented  to  the 
building  of  a  dam  by  defendants  on  condition  that  the  work  should 
be  done  so  as  not  to  injure  them,  but  the  work  was  so  unskillfully 
executed  as  to  set  the  water  back  on  plaintiffs'  wheels,  the  erection 
is  a  nuisance,  notwithstanding  the  conditional  license.     Brow  v. 

Bowcn,  30  N.  Y.  519. 

One  who  obtains  permission  to  lay  gas  pipe  in  a  public  street  is 
bound  to  restore  it  to  its  former  condition  or  is  liable  for  damages. 
McMamus  v.  Citizens  Gaslight  Co.  40  Barb.  380.  Ejecting  a 
stream  of  air  and  dirt  through  a  pipe  from  a  factory  across  a  tow- 
path  of  a  canal,  whereby  animals  are  frightened,  is  a  nuisance. 
Conklin  v.  Phanix  Mills,  62  Barb.  299.  It  is  a  nuisance  for  one 
to  dig  a  pit  or  leave  a  dangerous  opening  on  his  own  land  adjoin- 
ing a  public  highway  so  that  those  using  it  with  ordinary  caution 
may  fall  in  it.      Wright  v.  Sanders,  3  Keyes,  323 ;  Davenport  v. 


NUISANCE.  535 


Art.  3.     Who  Can  Maintain  the  Action. 


Buchnan,  37  N.  Y.  568;  Vale  v.  Bliss,  50  Barb.  358.  It  is  not 
necessary  the  pit  should  be  in  the  street  to  be  a  nuisance.  Bond 
V.  Smith,  7  St.  Rep.  829;  s.  C.  44  Hun,  219.  A  gas  works 
may  be  a  nuisance  according  to  its  location  and  amount  of  injury 
it  inflicts.  Car  hart  v.  Atiburn  Gaslight  Works,  22  Barb,  297. 
Discharge  of  refuse  from  a  cheese  factory,  so  as  to  render  water 
unwholesome  and  offensive,  is  a  nuisance.  Snoiv  v.  Williajus, 
\6  Piun,  468.  Defendant  erected  on  his  own  lands  a  dam  a  short 
distance  from  his  own  house  on  a  small  stream ;  the  water  of  the 
pond  held  by  the  dam  became  stagnant,  and  became  filled  with 
unwholesome  matter  which  poisoned  the  atmosphere,  rendered 
the  plaintiff's  premises  dangerous  to  life  and  health,  and  depreci- 
ated its  value.  Held,  a  nuisance.  Adams  v.  Popham,  y6  N.  Y. 
410.  It  seems  that  to  navigate  a  steamboat  by  the  use  of  an  un- 
inspected boiler  is  a  nuisance,  and  proof  that  it  was  done  in  viola- 
tion of  an  express  statute  dispenses  with  the  necessity  of  proving 
other  negligence.  Van  Norden  v .  Robinson,  ^^  Hun,  567.  Where 
a  pond  maintained  by  defendant,  for  manufacturing  purposes, 
upon  land  belonging  to  the  plaintiff,  and  which  joins  other  lands 
belonging  to  him,  is  a  common  nuisance,  and  especially  injurious 
to  plaintiff,  he  may  bring  an  action  to  have  the  pond  removed  and 
the  defendant  restrained  from  restoring  it,  even  though,  by  the 
terms  of  the  deed  by  which  the  lands  were  conveyed  to  defend- 
ant by  a  former  owner,  the  right  to  maintain  the  pond  is  expressly 
reserved.    Leonard  v.  Spencer,  34  Hun,  341,  affirmed,  108  N.  Y.  338. 

The  Legislature  has  power  to  declare  places  or  property  used  to 
the  detriment  of  public  interests  or  the  injury  of  health,  morals 
or  welfare  of  community,  public  nuisances,  although  not  such  at 
common  law.  This  power  may  not  be  used  arbitrarily  where  no 
public  right  or  interest  is  involved.  If  the  court  can  judicially 
see  that  the  statute  is  a  mere  invasion  or  was  for  the  purpose  of 
individual  oppression,  it  may  be  set  aside  as  unconstitutional. 
It  seems  a  public  nuisance  may  only  be  abated  by  the  individual, 
where  it  obstructs  the  private  rights  or  interferes  with  his  enjoy- 
ment of  a  right  common  to  many,  and  he  thereby  sustains  a 
special  injury.     Lazvton  v.  Steel,  1 19  N.  Y.  226,  affirmed  6  Supp.  1  5. 

The  use  of  a  pier  by  a  city  as  a  dumping  ground,  will  not  be 
interfered  with  by  injunction,  unless  it  is  shown  that  the  plaintiff 
would  sustain  not  only  special  but  irreparable  injury.  Hill  v. 
Mayor,  15  Supp.  393,  139  N.  Y.  495. 


536  NUISANCE. 


Art.  3.     Who  Can  Maintain  the  Action, 


The  habitual  use  of  a  sidewalk  or  highway  to  the  serious  incon- 
venience of  the  public  is  a  nuisance  per  sc.  When  an  unreasona- 
ble use  of  a  public  highway  is  shown,  and  it  also  appears  that  such 
unreasonable  use  causes  special  damages  to  an  individual,  he 
has  a  personal  right  of  action  to  compel  the  abatement  of  the 
nuisance.     Flynn  v.  Taylor,  127  N.  Y.  596. 

One  carrying  on  a  lawful  business  in  such  a  way  as  to  prove  a 
nuisance  to  his  neighbor  is  liable  therefor.  It  is  not  necessary 
the  neighbor  be  driven  from  his  dwelling;  it  is  enough  that  enjoy- 
ment of  life  and  property  is  rendered  uncomfortable ;  although 
the  acts  complained  of  are  inseparably  connected  with  the  carry- 
ing on  of  the  business  and  the  resulting  damages  a  necessary  con- 
sequence, if  those  acts  constitute  a  nuisance  per  se,  it  is  not 
necessary  to  show  negligence  in  order  to  sustain  a  recovery.  A 
use  which  produces  noxious  vapors  and  smells  in  a  neighborhood, 
resulting  in  material  injury  to  the  property  and  the  comfort  of 
those  dwelling  there,  is  not  reasonable.  Bohan  v.  Port  Jervis  Gas- 
light Co.  122  N.  Y.  18. 

Where  a  municipal  corporation  constructed  sewers  so  as  to  dis- 
charge sewage  into  a  stream  above  plaintiff's  pond,  the  water  of 
which  he  used  for  domestic  purposes  and  propagating  fish,  render- 
ing the  water  unfit  for  use  and  covering  the  banks  with  filth  and 
sediment,  it  was  held  a  nuisance.     Chapman  v.  City  of  Rochester, 

no  N.  Y.  273. 

As  to  when  use  of  street  by  horse-car  company  is  a  nuisance, 
see  Hussner  v.  Brooklyn  City  R.  R.  Co.  114  N.  Y.  433. 

A  tenant  does  not  become  responsible  for  a  nuisance  by  accept- 
ance of  a  lease ;  it  must  appear  that  he  had  actual  or  constructive 
notice  of  the  existence  of  a  nuisance.  The  landlord  is  bound  to 
abate  a  nuisance.      Timlin  v.  Standard  Oil  Co.   126  N.  Y.  514. 

A  lawful  business  may  not  be  enjoined  as  a  nuisance  merely 
because  it  is  undesirable  and  offensive  to  adjoining  proprietors ; 
but  where  in  itself  or  the  manner  in  which  it  is  conducted  positive 
harm  is  inflicted  and  the  rights  of  others  are  materially  affected 
and  impaired,  then  the  law  will  intervene  to  prevent  a  use  by  one, 
of  his  own  property,  which,  sensibly  lessens  or  destroys  the  enjoy- 
ment by  others  of  their  own.  So  held  where  the  exhibition  of  a 
puppet  show  attracted  and  detained  a  crowd  upon  the  sidewalk 
in  front  of  plaintiff's  store,  which  materially  impeded  ingress  or 
eo-ress  thereto  and  therefrom  and  interfered  with  the  transaction 


NUISANCE.  537 


Art.  3.     Who  Can  Maintain  the  Action. 


of  plaintiff's  business.  Jacques  v.  National  Exhibit  Co.  1 5  Abb. 
N.  C.  250.  The  use  of  premises  by  a  tradesman  must  be  reason- 
able, and  he  cannot  produce  in  his  show  windows  highly  sensa- 
tional exhibitions,  calculated  to  draw  a  crowd  amounting  almost 
to  a  mob,  and  thus  create  a  public  street  nuisance.  Elias  v. 
Sutherland,  18  Abb.  N.  C.  126.  See,  2X^0,  People  v.  Mayor,  18 
Abb.  N.  C.  123.  The  former  case  contains  a  valuable  note  on 
the  obstruction  of  sidewalks  for  business  purposes,  citing  a  large 
number  of  cases  upon  that  point. 

A  hospital  for  the  care  of  sick  infants,  including  such  as  might, 
after  admission,  develop  contagious  diseases  in  the  residential 
part  of  a  great  city,  although  not  a  nuisance  of  itself,  may,  by 
reason  of  features  inseparable  from  its  maintenance  including  the 
noise  of  patients,  their  attendant  removal  and  death,  and  the 
probabilities  of  contagious  diseases,  make  a  proper  case  for  an 
injunction  against  it.  The  question  is  one  of  reasonableness  or 
unreasonableness  in  the  use  of  the  property,  which  is  largely  de- 
pendent upon  its  locality  and  its  surroundings.  Gilford  v. 
Babies  Hospital,  21  Abb.  N.  C.  159. 

Within  the  rule  that  it  is  not  necessary  to  a  right  of  action  for 
a  nuisance  to  an  adjoining  occupant,  that  he  should  be  driven 
from  his  dwelling  by  reason  thereof,  but  that  it  is  enough  that  his 
enjoyment  of  life  and  property  is  rendered  uncomfortable  thereby, 
the  operation  of  a  steam  engine  and  dynamos  to  produce  electric 
light  for  use  in  defendant's  hotel,  in  such  a  place  therein  that 
their  noise  and  constant  vibration  materially  interfered  with  ordi- 
nary conversation  in  the  parlor  of  plaintiff's  adjoining  house,  and 
with  sleep  at  night,  and  caused  some  of  the  occupants  to  become 
sick,  is  a  nuisance,  where  it  is  unnecessary  and  results  from 
some  defect  in  the  machinery  which  can  be  remedied,  or  where 
the  plant  can  be  located  in  some  other  part  of  the  hotel.  Such  a 
noise  is  not  to  be  regarded  as  incident  to  city  life,  which  residents 
of  city  must  submit  to.  Yocum  v.  Hotel  St.  George  Co.  18  Abb. 
N.  C.  340. 

A  box  factory  next  a  dry -goods  store,  which  causes  damage  or 
annoyance  to  a  neighbor,  is  a  nuisance.  Catlin  v.  Patterson,  10 
St.  Rep.  724.  So  is  building  a  house  in  such  a  way  and  of  such 
poor  material  that  it  falls  and  injures  the  adjoining  property. 
jfervis  v.  Baxter,  52  Supr.  Ct.  109. 

Where  a  municipal  corporation,  without  the  pretence  of  author- 


538  NUISANCE. 


Art.  3.     Who  Can  Maintain  the  Action. 


ity,  and  in  direct  violation  of  a  statute,  assumes  to  grant  to  a 
private  individual  the  right  to  obstruct  one  of  its  streets  while  in 
the  transaction  of  his  private  business,  and  for  such  privilege  takes 
compensation,  it  must  be  regarded  as  itself  maintaining  a  nuisance 
so  long  as  the  obstruction  is  continued,  by  reason  of  or  under  the 
license,  and  is  liable  to  damages  naturally  resulting  therefrom  to 
a  third  person.      Cohen  v.  Mayor  of  New  York,  113  N.  Y.  532. 

An  adjacent  occupant  of  a  building  has  no  right  to  appropriate 
the  sidewalk  for  the  purpose  of  his  business  by  backing  or  placing 
vehicles  upon  it  and  thereby  obstructing  or  preventing  the  use  of 
it  by  persons  passing  along  the  street  on  foot.  Richardson  & 
Boynton  Co.  v.  Barstoiu  Stove  Co.  36  St.  Rep.  983. 

A  fence  erected  and  maintained  upon  or  near  a  division  line,  of 
such  a  dangerous  character  as  to  cause  serious  injury  and  damage 
to  the  animals  of  the  adjoining  owner  that  come  in  contact  with 
it,  is  a  nuisance.     Rowland  y.  Baird,  18  Abb.  N.  C.  256. 

A  grantee  who  gathers  into  an  artificial  sluiceway  or  sewer  all 
the  filth  there  is  under  premises  and  empties  upon  his  grantor's 
land  maintains  a  nuisance.  Van  Rensselaer  v.  City  of  Albany,  15 
Abb.  N.  C.  457.  A  coal  hole  left  open  and  unguarded  in  the 
sidewalk,  even  though  the  opening  was  made  by  a  license  from 
the  city,  is  a  nuisance.  Where  such  an  opening  has  been  made 
with  the  consent  of  the  city  it  would  not  in  and  of  itself  be  a 
nuisance,  but  the  consent  being  conditioned  upon  certain  modes 
of  use,  if  the  opening  is  left  unguarded  it  becomes  a  nuisance. 
yennings  v.   Van  Schaick,  108  N.  Y.  530. 

Privies  connected  with  a  public  school,  and  drained  into  a  small 
open  brook  flowing  through  the  village,  are  a  nuisance.  Board  of 
Health  v.  Casey,  18  St.  Rep.  251  ;  s.  c.  3  N.  Y.  Supp.  399.     The  ^ 

erection  and  maintenance  of  an  ice-house  within  two  inches  of  a 
brick  dwelling-house  and  store  of  plaintiff  in  such  a  way  that  the 
ice  injured  the  walls  of  plaintiff's  house  and  rendered  it  uncomfort- 
able and  reduced  its  rental  and  market  value  was  held  to  be  a 
nuisance.  It  is  no  excuse  that  plaintiff's  business  is  lawful  and 
carried  on  with  all  possible  care.      Carrick   v.    Shi ffcr decker,   48 

Hun,  3SS- 

In  an  action  to  restrain  defendant  from  so  conducting  the  busi- 
ness of  manufacturing  sash,  blinds  and  boxes  on  the  adjoining 
premises  so  as  to  allow  the  steam,  smoke,  soot  and  cinders  and 
partly  burned  shavings  therefrom  to  come  upon  and  into  plain- 


il 


NUISANCE.  539 


Art.  3.      Who  Can  Maintain  the  Action. 


tiff's  premises  to  her  annoyance  and  damage,  in  which  it  appeared 
that  plaintiff's  house  was  at  times  enveloped  in  smoke,  and  that 
dust  and  soot  proceeding  from  defendant's  wares  were  deposited 
on  the  windows  and  the  rooms  of  the  plaintiff's  house  and  upon 
clothing  when  hung  in  the  yard  to  dry,  it  was  held  to  be  a  nui- 
sance.    Beir  v.  Cooke,  37  Hun,  381. 

It  was  held  in  Cogswell  v.  N.  Y.  etc.  R.  R.  Co.  103  N.  Y.  10, 
reversing  48  Supr.  Ct.  31,  that  the  power  given  by  an  act  of  the 
Legislature  to  a  railroad  company  to  run  its  cars  over  the  tracks 
of  another  company  to  a  terminus  in  the  city  of  New  York,  even 
if  such  company  has  been  authorized  to  acquire  lands  and  con- 
struct an  engine  house  in  a  proper  place  near  such  terminus,  did 
not  so  sanction  or  authorize  the  erection  of  such  house  where  it 
constituted  a  palpable  private  nuisance  to  an  adjoining  owner,  so 
as  to  deprive  him  of  any  remedy  for  damages  resulting  therefrom. 

In  an  action  brought  to  recover  damages  to  plaintiff  from  de- 
preciation in  the  value  of  her  property  caused  by  the  manufacture 
of  gas  in  close  proximity  thereto  by  defendant,  and  restrain  the 
defendant  from  continuing  the  nuisance,  the  last  case  was  fol- 
lowed. Bohan  v.  Port  Jcrvis  Gaslight  Co.  45  Hun,  257,  afifirmed, 
122  N.  Y.  18.  One  entitled  to  the  use  of  air  and  water  in  its 
natural  condition,  if  injured  by  its  pollution,  may  maintain  an 
action  against  the  person  causing  such  pollution,  whether  an  in- 
dividual or  a  corporation.  Chapman  v.  City  of  Rochester,  1 10 
N.  Y.  273. 

If  plaintiffs  establish,  in  an  action  to  restrain  a  nuisance,  that 
poles  erected  in  the  street  by  a  duly  organized  telegraph  com- 
pany, incommode  the  public  use  of  the  street  in  an  unnecessary 
and  unreasonable  manner,  not  warranted  by  law,  plaintiffs  will  be 
entitled  to  recover  at  least  nominal  damages.  People  v.  Metro- 
politan Telephone  Co.  1 1  Abb.  N.  C.  304.  The  occupant  of  prop- 
erty adjoining  upon  both  sides  of  a  railroad,  who  erected  a  bridge 
across  the  railroad  so  low  as  to  interfere  with  the  brakeman  in  the 
performance  of  his  duty,  is  liable  to  an  action  by  the  latter  for  the 
nuisance.  Whoever  continues  a  nuisance  is  responsible  for  the 
injury  caused  thereby.  Dukes  v.  Eastern  Distilling  Co.  51  Hun, 
605  ;  S.  C.  4  N.  Y.  Supp.  562,  22  St.  Rep.  833. 

Where  a  barn  was  built  by  the  defendants  upon  premises  ad- 
joining the  plaintiff's  residence  and  used  as  a  livery  stable,  so 
that  the  use  of  plaintiff's  residence  was  rendered   uncomfortable 


540 


NUISANCE. 


Art.  3.     Who  Can  Maintain  the  Action. 


and  unwholesome,  it  was  held  that  the  keeping  of  said  stable  was 
a  nuisance.  Robinsojt  v.  Smith,  25  St.  Rep.  647.  But  the  erection 
and  use  of  a  building  for  the  stabling  of  horses  or  even  the  busi- 
ness of  a  livery  stable,  is  not  in  and  of  itself  a  nuisance.  Stillwell 
V.  Buffalo  Riding  Academy,  21  Abb.  N.  C.  472. 

The  unlawful  management  and  operation  of  a  railroad  which 
causes  damages  to  adjoining  premises  is  a  nuisance.  Avery  v. 
N.  Y.  Central  &  H.  R.  R.  R.  Co.  26  St.  Rep.  279 ;  s.  c.  7  N.  Y.  Supp. 
341.  Where  it  is  a  case  of  a  glaring  public  nuisance,  proof  of 
slight  special  injury  is  sufficient  to  give  plaintiff  standing  in 
court  for  redress.     Flynn  v.  Taylor,  26  St.  Rep.  649. 

Where  a  nuisance  existed  adjoining  property  of  plaintiffs,  con- 
sisting of  vacant  lots,  while  the  fact  that  the  property  was  not 
occupied  made  the  measurement  of  damages  more  difficult,  it 
would  not  impair  their  right  to  maintain  an  action  to  abate  the 
nuisance.  Busch  v.  Lackawanna,  etc.,  R.  R.  Co.  34  St.  Rep.  7 ; 
Ruchnan  v.  Green,  9  Hun,  226. 

A  dam  at  a  point  where  a  river  is  incapable  of  navigation  so 
that  the  common  right  of  the  public  is  in  no  way  impaired  thereby 
is  not  a  nuisance.  Matter  of  City  Reservation  at  Niagara,  37 
Hun,  537.  An  open  area  eight  feet  deep  at  the  rear  of  a  store 
protected  on  three  sides  by  the  walls  of  adjoining  buildings  and 
separated  from  the  alley  on  which  it  faced  by  a  stone  coping  two 
feet  wide  and  seven  inches  high,  was  held  not  to  be  a  structure 
so  dangerous  as  to  be  a  nuisance.  Bond  v.  Smith,  113  N.  Y.  378, 
reversing  44  Hun,  219.  Where  plaintiff  connects  his  own  premises 
with  the  private  sewer  from  adjoining  premises  with  the  consent 
of  the  owner  and  he  is  damaged  by  the  discharge  of  refuse  upon 
his  premises,  as  a  result  of  the  use  of  the  sewer,  he  has  no  cause 
of  action  against  the  owner.  Kosmakv.  Mayor,  53  Hun,  329;  S.  C. 
6  N.Y.  Supp.  453. 

A  scaffold  suspended  from  the  roof  of  a  hotel  for  the  purpose 
of  making  necessary  repairs,  where  the  hotel  was  separated  from 
the  sidewalk  by  an  area  of  fifteen  feet,  was  held  not  to  be  a  nui- 
sance. Hexamer  v.  Webb,  loi  N.  Y,  377.  An  owner's  tempo- 
rary removal  of  the  sidewalk  in  front  of  his  premises  in  order  to 
enable  him  to  cart  in  material  used  in  the  construction  of  build- 
ings does  not  constitute  a  nuisance.      Ster  v.  Tuety,  45  Hun,  49. 

It  was  held  to  the  extent  to  which  telephone  poles  were  neces- 
sary and  reasonably  sufficient  and  adapted  to  the  fixtures    and 


NUISANCE.  541 


Art.  3.     Who  Can  Maintain  the  Action. 


lines  of  the  company,  they  were  not  a  nuisance  or  an  unlawful 
obstruction,  though  they  would  be  wherever  that  extent  was 
exceeded.     People  v.  Metropolitan  Telephone  Co.  31    How.  596. 

Where  defendant  was  engaged  in  supplying  a  gas-light  com- 
pany with  naphtha  by  pumping  it  through  pipes  under  the  streets 
of  the  city,  the  pipe  being  in  good  order  and  no  evidence  of  leakage 
therefrom,  it  was  held  it  did  not  constitute  a  nuisance.  Lee  v. 
Vacuum  Oil  Co.  7  N.  Y.  Supp.  426.  Where  an  excavation  under 
a  sidewalk  is  made  by  the  owners  of  the  premises  and  covered 
with  flag-stones  with  the  consent  of  the  authorities,  the  owner 
is  not  guilty  of  maintaining  a  nuisance  so  long  as  the  space 
is  securely  covered.  Babbagc  v.  Powers,  7  Supp.  306.  A  trades- 
man may  convey  goods  from  the  street  to  his  store  and  for 
that  purpose  may  temporarily  obstruct  the  passage  on  the  side- 
walks, but  such  obstruction  must  be  reasonable  with  reference 
to  the  rights  of  the  public.  Where  an  action  was  brought  by 
plaintiffs  who  were  engaged  in  the  same  business  and  occupied  an 
adjoining  store,  setting  out  such  facts,  it  is  held  there  were  suffi- 
cient averments  of  special  damage  to  maintain  the  action.  Cal- 
lanan  v.  Gilinan,  107  N.  Y.  361  ;  Flynn  v.   Taylor,  127  N.  Y.  598. 

Where  it  was  alleged  that  defendant,  without  authority,  entered 
on  the  public  avenue  and  erected  a  railroad  station,  and  that  such 
station  was  an  unlawful  appropriation  of  plaintiff's  property,  judg- 
ment was  granted  directing  a  removal  of  the  station.  Porth  v. 
Manhattan  R.  R.  Co.  11  N.  Y.  Supp.  633. 

The  construction  of  a  bridge  over  the  waters  of  the  shores  of  a 
bay,  if  an  unlawful  obstruction  to  navigation,  may  be  redressed 
by  proper  proceedings  on  behalf  of  the  public ;  but  a  private  per- 
son who  has  not  suffered  any  special  injury  has  no  standing  to 
maintain  such  an  action.  Roe  v.  Strong,  107  N.  Y.  350.  Where 
a  complaint  against  the  erection  of  a  frame  house  in  a  city  con- 
tained no  averment  of  special  damages,  it  was  held  a  mere  viola- 
tion of  the  city  ordinance  did  not  give  plaintiff  a  right  of  action. 
Young  V.  ScJicu,  30  St.  Rep.  608.  A  public  nuisance  does  not 
create  a  private  cause  of  action  unless  a  private  right  exists  and  is 
specially  injured  by  it.  Abendroth  v.  Metropolitan  Ry.  Co.  122 
N.  Y.  17. 

A  private  person  cannot  maintain  an  action  to  restrain  the 
erection  of  a  nuisance  near  the  waters  of  a  navigable  stream. 
The  people  only  can  maintain  an  action  to  restrain  a  nuisance 


542  NUISANCE. 

Art.  4.     Defendants  and  Defences. 

by  way  of  dike  on  lands  under  water.  This  is  an  injury  if  a  nui- 
sance to  the  common  right  of  the  pubHc  to  navigate  the  waters. 
Knickerbocker  Ice  Co.  v.  ScJiultz,  116  N.  Y.  382.  The  fact  that  a 
person  has  to  pass  over  a  highway  more  frequently  than  others 
does  not  establish  such  special  damages  as  will  authorize  a  private 
action  for  its  abatement  as  a  nuisance.  Wakeman  v.  Wilbur,  4 
Supp.  938;  S.  C.  21  St.  Rep.  556.  An  action  may  be  maintained 
by  the  people  for  the  removal  of  a  nuisance  and  for  damages. 
People  v.  Metropolitan,  etc.  Telegraph  Co.  ii  Abb.  N.  C.  304,  64 
How.  120.  Where  the  complaint  alleged  that  the  running  of  de- 
fendant's trains  on  the  public  street  in  front  of  plaintiff's  house 
caused  vibration  of  the  ground  and  jarred  plaintiff's  house  so  that 
the  walls  were  cracked,  the  trains  were  run  at  short  intervals,  mak- 
ing much  noise  and  emitting  smoke  and  gas  obnoxious  and  offen- 
sive to  plaintiff,  that  the  operation  of  the  trains  caused  plaintiff 
intense  mental  anxiety  and  distress,  shows  sufficient  special  injury 
to  enable  plaintiff  to  maintain  the  action  where  the  demurrer  ad- 
mits the  wrongful  occupation  of  the  street.  Wilcken  v.  West 
Brooklyn  R.  R.  Co.  i  Supp.  791.  And  where  defendant  digs  a 
ditch  on  its  land  in  which  the  water  becomes  stagnant  and  offen- 
sive, plaintiff  owning  abutting  land  may  maintain  an  action  for  the 
injury  caused  thereby  though  there  is  no  house  on  the  land  occu- 
pied either  by  himself  or  another.  Biisch  v.  N.  Y.  etc.  Co.  12 
N.  Y.  Supp.  8s. 

A  complaint  which  alleges  that  defendant's  structure  is  a  per- 
manent unlawful  nuisance  and  prays  for  a  permanent  injunction, 
and  that  the  damage  may  be  ascertained  and  adjusted,  does  not 
improperly  unite  two  causes  of  action.  O' Sullivan  v.  New  York 
Elevated  R.  R.  Co.  7  Supp.  51.  (This,  like  very  many  of  the 
case  cited,  was  an  action  in  equity  and  asks  for  equitable  relief.) 

ARTICLE    IV. 

Defendants  and  Defences.    §  1661. 

§  166      Defendants  therein. 

A  person  by  whom  the  nuisance  has  been  erected,  and  a  person  to  whom  the 
real  property  has  been  transferred,  may  be  joined  as  defendants  in  such  an 
action. 

The  lessee  of  a  store  may  join  his  lessor  as  plaintiff  in  an  action 
to  restrain  as  a  nuisance  a  show  case  placed   on  the  sidewalk  by 


NUISANCE.  543 


Art.  4.     Defendants  and  Defences. 


his  neighbor  so  as  to  exclude  the  light  from  his  windows.  Hal- 
lock  v.  Scheyer,  33  Hun,  in.  An  action  will  lie  against  an  ele- 
vated railroad  which  has  erected  a  structure,  although  it  has 
leased  it  to  another  company,  which  is  operating  it  at  the  time 
the  action  is  brought.  Pond  v.  Metropolitan  Elevated  R.  R.  Co. 
42  Hun,  567.  The  owner  of  premises,  although  not  in  pos- 
session, is  liable  for  the  maintenance  of  a  nuisance  thereon  where 
he  receives  rent  with  knowledge  thereof.  Board  of  Health  of 
Neiv  Rochelle  v.  Valentine,  32  St.  Rep.  919.  See,  however,  Bab- 
bage  V.  Powers,  26  St.  Rep.  799,  The  tenant  of  the  ground  floor 
of  a  store  who  has  the  benefit  of  the  wooden  awning  over  the 
sidewalk  without  license  from  the  city,  is  liable  for  an  injury 
done   by  its   fall.     Me  Part  land  v.  Thomas,  4.^.  Y.  Supp.   100. 

Where  one  employs  a  contractor  to  do  work  not  in  its  nature 
a  nuisance,  but  which,  when  completed,  is  so  by  reason  of  the  man- 
ner in  which  the  contractor  has  performed  the  work,  if  he  accepts 
the  work  in  that  condition,  he  becomes  responsible  for  the  crea- 
tion of  a  nuisance.  Vogel  v.  M.ayor,  92  N.  Y.  10.  The  persons 
who  erected  the  nuisance  and  the  owner  of  the  realty  may  be 
joined  as  defendants.  Robinson  v.  Smith,  7  Supp.  38.  It  is  not 
necessary  to  allege  that  the  person  maintaining  the  nuisance  is  a 
tenant  of  the  freehold  on  which  it  is  maintained.  Horton  v. 
Brozvnsey,  10  St.  Rep.  800.  One  to  whom  a  railroad  cannot  be 
specially  injurious,  cannot  maintain  an  action.  Davis  v.  Mayor, 
14  N.  Y.  506.  Persons  who,  by  their  several  acts  or  omissions, 
maintain  a  common  nuisance,  are  jointly  and  severally  liable  for 
such  damages  as  are  the  direct,  immediate  and  probable  conse- 
quences of  it.  Simmons  v.  Everson,  124  N.  Y.  319,  distinguish- 
ing Chipman  v.  Palmer,  yy  N.  Y.  51.  See  Timlin  v.  Standard 
Oil  Co.  126  N.  Y.  514,  as  to  liability  of  tenant  who  sublets 
premises. 

The  owners  of  a  pier  who  became  such  during  the  running  of  a 
valid  outstanding  lease  are  not  responsible  for  a  nuisance  created 
thereon,  during  the  existence  of  a  precedent  estate  where  they 
have  had  no  notice  thereof.  The  owner  is  responsible  if  he 
creates  a  nuisance  and  maintains  it  or  if  it  was  created  by  a  prior 
owner  or  a  stranger,  and  he  knowingly  maintains  it,  or  if  he  de- 
mises premises  to  be  used  as  a  nuisance,  but  an  owner  who  has 
demised  premises  for  a  term  during  which  they  became  ruinous 
and  thus  a  nuisance,  is  not  responsible  for  the  nuisance  unless  h.e 


544  NUISANCE. 


Art.  4.     Defendants  and  Defences. 


has  covenanted  to  repair.  Before  a  grantee  or  devisee  of  prop- 
erty, upon  which  there  is  an  existing  nuisance,  can  be  held  for 
damages,  he  must  have  notice  of  the  nuisance  and  a  reasonable 
time  to  abate  it.  Ahern\.  Steele,  115  N.  Y.  203.  The  same  rule 
was  held  in  the  case  of  an  overhanging  gutter  discharging  water 
on  adjoining  land  in  Haggerty  v.  Thomson^  45  Hun,  398.  See, 
also,  for  the  same  principle,  Wolf  v.  Kilpatrick,  loi  N.  Y.  146, 

In  an  action  to  enjoin  a  nuisance  both  the  lessor  and  lessee  of 
the  structure  constituting  a  nuisance  are  necessary  parties. 
O' Sullivan  v.  N.  V.  Elevated  R.  R.  Co.  y  N.  Y.  Supp.  51.  The 
owner  of  premises  who  had  knowledge  of  the  purpose  for  which 
a  barn  adjudged  a  nuisance  was  erected  by  his  tenant  and  he  con- 
sented thereto  is  a  proper  defendant.  Robinson  v.  Ellsworth,  25 
St.  Rep.  647.  An  action  may  be  prosecuted  against  any  tenant 
for  life  or  years  and  the  assignee  of  either,  and  also  against  co- 
tenants  and  guardians,  but  the  plaintiff  must  be  a  person  seized 
of  some  estate  of  reversion  or  remainder.  Purton  v.  Watson,  19 
St.  Rep.  6. 

Where  an  owner  places  a  coal  vault  under  the  sidewalk,  with 
an  opening  constructed  safely  and  properly  and  rents  the  premi- 
ses to  a  tenant  who  takes  the  entire  possession  and  occupation, 
the  landlord  reserving  no  control,  and  the  tenant  carelessly  leaves 
the  coal  hole  open,  whereby  some  one  is  injured,  the  tenant,  not 
the  landlord,  is  liable.  Where,  however,  the  building  is  rented 
in  flats  or  apartments  and  the  owner  remains  in  control  to  some 
extent,  employs  a  janitor  to  take  care  of  the  premises,  who  in  the 
discharge  of  his  duty  as  such,  controls  the  coal  vault  and  the 
opening  in  the  sidewalk  thereto,  and  through  his  negligence  in 
leaving  the  opening  unguarded,  an  injury  occurs,  the  owner  is 
liable  and  this  although  the  coal  for  the  occupants  of  the  premises 
is  received  through  the  coal  hole.  Jennings  v.  Van  Schaick,  108 
N.  Y.  530.  This  case  is  also  reported  in  20  Abb.  N.  C.  324,  and 
is  accompanied  by  a  full  note  on  liability  for  condition  of  apart- 
ment houses. 

Persons  in  possession  of  premises  either  as  trustees  or  tenants 
are  liable  for  damages  caused  by  such  premises  being  out  of  repair. 
Murray  v.  Archer,  5  Supp.  326.  In  an  equitable  action  to  enjoin 
the  keeping  of  bees  on  adjoining  premises  as  a  nuisance,  the 
owner  of  the  fee  of  such  premises  is  not  a  necessary  party.  Olm- 
stead  v.  Rich,  6  Supp.  826. 


NUISANCE.  545 


Art.  4.     Defendants  and  Defences. 


Where  a  person  acquires  title  to  land  upon  which  there  is  an 
existing  nuisance,  the  mere  omission  to  abate  or  remove  it  does 
not  render  him  liable  to  an  action ;  there  must  be  something 
amounting  to  an  actual  use,  or  a  request  to  abate  it  must  be 
shown.  Wenzlick  v.  McCottcr,  87  N.  Y.  122.  It  is  said  in  the 
latter  case  that  Brown  v.  Cayuga,  etc.,  R.  R.  Co.  12  N.  Y.  486; 
Wasmcr  v.  D.,  L.  &■  IV.  R.  R.  Co.  80  N.  Y.  212 ;  Irvine  v.  Wood, 
51  N.  Y.  224;  Clifford  V.  Dam,  81  N.  Y.  56,  and  Walsh  v.  Mead, 
8  Hun,  387,  hold  the  same  doctrine.  All  these  cases  seem  to 
have  arisen  before  the  enactment  of  the  present  section,  but 
under  a  statute  substantially  like  it.  2  R.  S.  (Edm.  ed.)  342,  §  2. 
Where  a  nuisance  was  created  by  defendant's  grantor,  a  prior  notice 
to  him  of  its  existence  must  be  shown,  and  he  is  only  liable  for 
subsequently  accruing  damages.  Miller  v.  Church,  5  Hun,  342. 
See  Moore  v.  Gadsen,(^}^  N.  Y.  12.  He  who  maintains  a  nuisance 
knowingly  is  just  as  responsible  as  he  who  created  it.  Mosierv. 
U.  &  S.  R.  R.  Co.  8  Barb.  427 ;  Brotvn  v.  Cayuga,  etc.  R.  R.  Co. 
12  N.  Y.  486,  supra;  Wasmer  v.  D.,  L.  &  W.  R.  R.  Co.  80  N.  Y. 
212,  supra.  Where  the  nuisance  existed  at  the  time  of  the 
demise  the  lessee  will  be  liable  separately  or  jointly  with  the 
lessor  for  the  resulting  injuries.  See  87  N.  Y.  122,  supra  ;  Irvine  v. 
Wood,  51  N.  Y.  224.  In  order  to  charge  one  who  has  created  a 
nuisance  with  liability  for  its  continuance  after  he  has  parted  with 
the  property  upon  which  it  was  situated  or  caused,  he  must  be 
shown  to  have  derived  some  benefit  from  its  continuance,  or  to 
have  sold  with  warranty  of  the  continued  use  of  the  property  as 
enjoyed  while  the  nuisance  existed.  Hanse  v.  Cowing,  i  Lans. 
288 ;  Stvords  v.  Edgar,  59  N.  Y.  28. 

In  an  action  for  damages  to  plaintiff's  premises  by  water  from 
defendant's  roof  pouring  water  thereon,  it  appeared  that  the  gut- 
ter and  conductor  had  been  in  same  position  for  eighteen  years, 
and  that  defendant  bought  the  premises  in  1878.  Defendant  tes- 
tified he  bought  with  no  knowledge  that  the  gutter  cast  water  on 
plaintiff.  Held,  that,  without  proof  of  notice,  the  action  could 
not  be  maintained.  Haggerty  v.  Thonipson,  45  Hun,  399.  The 
grantee  of  premises  on  which  there  is  an  existing  nuisance  is  not 
made  liable  for  damages  by  a  notice  given  to  a  prior  owner,  but 
is  only  liable  for  those  accruing  after  notice  to  him.  Haggerty  v. 
Thompson,  10  St.  Rep.  137;  s.  P.  Bondv.  Smith,  7  St.  Rep.  829.  If 
different  parties  independently  pollute  a  stream,  each  discharging 
[Special  Actions  —  35.] 


546  NUISANCE. 


Art.  4.     Defendants  and  Defences. 


from  his  own  premises  sewage  therein,  one  of  the  several  wrong- 
doers will  not  be  liable  for  all  the  damages  occasioned  by  the  nui- 
sance thus  created,  but  each  is  liable  to  the  extent  only  of  the 
wrong  committed  by  him.  Wallace  v.  Drew,  59  Barb.  413; 
Chipnian  v.  Palmer,  yy  N.  Y.  51.  Every  person  who  assists  in 
the  erection  of  a  structure  with  intent  that  it  shall  be  put  to  an 
illegal  use,  or  who  aids  in  the  continuance  of  it,  is  guilty  of  a 
nuisance,  and  liable  for  damages  thereby  occasioned.  CJienango 
Bridge  Co.  V.  Lewis,  6^  Barb.  in.  A  party  is  liable  for  a  nui- 
sance which  he  has  directed  to  be  placed  in  a  public  highway  by  a 
contractor.      Jones  v.  CJiaiitry,  i  Hun,  613. 

One  who  lets  his  land  for  a  lawful  business  is  not  answerable 
unless  he  knew  or  had  reason  to  believe  it  would  be  a  private 
nuisance.  Fish  v.  Dodge,  4  Den.  31 1  ;  Pickard  v.  Collins,  23  Barb. 
444.  A  person  is  not  liable  for  a  lawful  act  done  on  his  own 
land  which  infringes  no  rights  of  an6ther,  simply  because  he  was 
influenced  to  do  it  by  wrong  and  malicious  motives.  Phelps  v. 
Nowlen,  72  N.  Y.  39. 

No  duty  rests  upon  a  property  owner  whose  title  does  not  run 
to  the  center  of  the  street,  to  remove  a  nuisance  which  he  did 
not  create,  although  it  stands  on  the  sidewalk  nearest  his  premi- 
ses. English  V.  Brejman,  60  N,  Y.  609.  Building  a  house  in 
such  a  way  and  of  such  poor  material  that  it  falls  and  injures  the 
adjoining  property  constitutes,  under  the  rule  laid  down  in  Heeg 
V.  Lieht,  80  N.  Y.  569,  a  private  nuisance,  and  renders  all  parties 
concerned  —  the  owner,  the  architect  and  the  builder  —  jointly 
liable  in  damages.  Jarvis  v.  Baxter^  52  Supr.  Ct.  19.  The  rule 
that  a  landlord  out  of  possession  is  not  liable  for  an  after-accruing 
nuisance,  unless  in  some  manner  he  is  in  fault  for  its  creation  or 
continuance,  applied,  holding  that  he  was  not  liable  for  injuries 
sustained  by  reason  of  the  breaking  of  a  stone  supporting  a  coal 
hole  cover  by  the  act  of  a  third  person,  of  which  he  had  no  knowl- 
edge. Wolfv.  Kilpatrick,  loi  N.  Y.  146.  It  is  not  a  nuisance 
to  blast  at  night,  as  is  usual  in  mines,  because  it  disturbs  the 
sleep  and  affects  the  health  of  adjoining  owners.  Marvin  v. 
Brewster  Trojt  Co.  55  N.  Y.  538.  A  dog  is  not  a  nuisance /^r  se. 
People  V.  Board  of  Police,  15  Abb.  167.  But  a  ferocious  dog, 
accustomed  to  bite  mankind,  is  a  common  nuisance.  Brown  v. 
Hoburger,  52  Barb.  15 

When  a  municipal  corporation  has  power  to  remove  a  nuisance, 


NUISANCE.  547 


Art.  4.     Defendants  and  Defences. 


it  is  liable  for  injuries  resulting  from  failure  to  keep  its  streets, 
lanes  and  walks  free  from  nuisances.  Sweet  v.  Glovcrsville,  12 
Hun,  302.  Nor  has  a  municipal  corporation  a  right  to  maintain 
a  nuisance  more  than  an  individual,  and  an  action  may  be  main- 
tained against  it  in  case  it  does  so.  Donolmc  v.  Mayor,  3  Daly, 
65.  But  a  stepping-stone  on  the  sidewalk  near  the  curb  is  not 
such  an  obstruction  as  a  municipality  is  liable  for.  DiiBois  v. 
City  of  Kingston,  102  N.  Y.  219.  One  owning  premises  as  trustee 
is  liable  in  damages  for  a  nuisance  created  by  a  discharge  of  water 
from  a  leaking  leader  upon  the  plaintiff's  adjoining  premises, 
although  the  leader  was  erected  by  a  former  owner  and  defendant 
was  ignorant  of  the  defect.  ScJnvab  v.  Cleveland,  28  Hun,  458. 
See  45  Hun,  399,  supra.  A  city  ordinance  required  the  removal 
of  snow  and  ice  within  a  specified  time ;  plaintiff  fell  on  the  ice  in 
front  of  defendant's  lots, and  was  injured  ;  it  did  not  appear  that 
the  grade  of  the  lot  and  the  arrangement  of  the  conductor  pipe 
was  made  by  defendant,  or  after  he  became  the  owner  of  the  lot, 
or  that  it  was  not  done  in  the  usual  or  proper  manner.  Held, 
that  if  there  was  a  nuisance  it  was  apparently  caused  by  the  omis- 
sion of  the  city  to  have  the  accumulated  snow  and  ice  removed, 
and  that  defendant  was  not  responsible  to  plaintiff,  nor  did  the 
failure  to  remove  the  ice  make  him  so.  Moore  v.  Gadsden,  93 
N.  Y.  12.  Where  defendant  did  not  construct  the  work  that  be 
came  a  nuisance  and  did  not  contrive  it  in  any  legal  sense,  no 
liability  attaches  to  him.  Woran  v.  Noble,  i  St.  Rep.  499.  A 
landowner's  payment  of  an  assessment  for  the  construction  of 
a  sewer  cannot  be  deemed  an  assent  by  him  to  the  unlawful  dis- 
charge of  the  sewage  upon  his  land,  nor  will  it  affect  his  right 
of  action  therefor  as  a  nuisance.  No  user  will  legalize  a  nuisance. 
Van  Rensselaer  v.  City  of  Albany,  15  Abb.  N.  C.  457.  In  an 
action  for  wrongful  discharge  of  tan  bark  in  plaintiff's  pond,  which 
was  on  the  same  stream  and  below  the  tannery,  it  was  held  to  be  no 
defence  that  plaintiff  might  have  prevented  the  pond  from  filling  up 
by  opening  a  waste  gate.      West  v.  Kiersted,  1 5  Week.  Dig.  549. 

It  is  not  a  defence  to  a  party  sued  separately  for  a  nuisance, 
that  other  parties  are  committing  the  same  nuisance  or  contribut- 
ing thereto.  Chipnian  v.  Palmer.,  yy  N.  Y.  56;  People  v.  Mallery, 
4  T.  &  C.  567.  The  fact  that  others  contributed  to  the  nuisance 
is  no  defence  to  maintaining  it.  Board  of  Health  of  City  of  Yon- 
kers  V,  Copciitt,  71  Hun,  149,  54  St.  Rep.  311,  24  Supp.  625. 


548  NUISANCE. 


Art.  5.     Pleadings  and  Practice. 


ARTICLE    V. 
Pleadings  and  Practice. 

Sub.  I.  Pleadings. 
2.  Practice. 

Sub.  I.   Pleadings. 

A  mere  allegation  in  a  complaint  that  a  trespass  upon  real  estate 
is  unauthorized  and  is  a  nuisance,  with  a  demand  that  the  con- 
tinuance of  such  trespass  be  enjoined,  does  not  make  the  action 
one  for  a  nuisance  so  as  to  make  it  triable  by  a  jury.  Johnston 
V.  Manhattan  R.  R.  Co.  41   St.  Rep.  682. 

While  the  title  of  a  defendant  to  the  property  need  not  be 
alleged,  enousfh  must  be  stated  to  show  that  he  is  liable  for  the 
existence  of  the  nuisance.  Chipman  v.  Palmer,  JJ  N.  Y.  51.  In 
actions  for  private  nuisance  all  the  damages  which  naturally 
and  probably  result  may  be  recovered,  whether  specially  alleged 
or  not.  Panton  N.Holland,  17  Johns.  92;  Lasala  v.  Holbrook, 
4  Paige,  169. 

The  action  is  a  substitute  for  the  writ  of  nuisance,  and  plaintiff 
must  aver  in  his  complaint  all  that  was  before  necessary  to  sustain 
an  action  of  that  nature.     Ellsworth  v.  Putnam,  16  Barb.  565  ;  Hub- 
bard v.  Russell,  24  Barb.  404.      In  order  to  maintain  the  action  it  is 
necessary  to  show  that  the  defendant,  if  not  the  original  creator,  had 
knowledge  of  the  existence  of  the  nuisance  ;  Hubbard  v.  Russell,  24 
Barb.  \OA„  stipra  ;  Miller  v.  CJmreh,  5  Hun,  342;   Conhocton  Stone 
Roadv.  Buffalo,  etc.  R.  R.  Co.  51    N.  Y.  573;  but  it  is  not  neces- 
sary  to   prove   a   request   to   abate   it.     Brozun   v.   Cayuga,  etc., 
R.    R.    Co.    12   N.  Y.   486.      But  see    Wenzlick  v.  MeCotter,  87 
N.  Y.  122.      In  an  action  for  injury  to  plaintiff's  land  by  an  erec- 
tion on  land   in   possession   of  defendants,  the   complaint   should 
aver  that  plaintiff  was  the  owner  of  the  freehold  affected  by  the 
nuisance  when  acts  were  committed,  and  that  defendants  were 
tenants  of  the  freehold  on  which   the  nuisance  is  erected.      Ells- 
morth  V.  Putnam,  16  Barb.  565.     Where  the  question   is  one  of 
general  interest,  or  the  parties  numerous,  one  may  sue  for  all. 
Astor  V.  N.    Y.  Arcade  R.  R.   Co.   3   St.    Rep.  188;    Wetmore  v. 
Story.  22  Barb.   414;  Hess  v.  B.  &  N.  F.  R.  R.  Co.  29  Barb.  391  ; 
Hutchins  v.  Smith,  63  Barb.  251. 

In  an  action  to  recover  damages  for  the  alleged  maintaining  of 
a  livery  stable  in  such  a  manner  as  to  render  it  a  nuisance,  held, 


NUISANCE.  549 


Art.  5.     Pleadings  and  Practice. 


that  it  was  unnecessary  to  allege  that  the  person  maintaining  the 
nuisance  was  a  tenant  of  a  freehold  interest  in  the  land  upon 
which  it  was  maintained ;  an  allegation  that  the  person  acted 
with  consent  of  the  owner  is  sufificient.  Horton  v.  Brownscy,  10 
St.  Rep.  800.  As  to  what  averments  are  necessar}'  in  an  action 
by  an  adjoining  owner  against  one  who  obstructs  a  sidewalk  by 
his  method  of  conducting  business,  see  Callanan  v.  Gilman,  107 
N.  Y.  360.  See  same  case  as  to  averments  of  special  damage. 
The  provisions  of  2  R.  S.  602,  §  66,  providing  that  where  a  con- 
struction has  been  put  upon  a  statute  by  the  Supreme  Court, 
every  act  done  in  good  faith  in  conformity  with  such  decision 
and  before  reversal,  shall  be  so  far  valid  as  to  excuse  from  liability 
for  a  penalty  or  forfeiture,  do  not  apply  to  an  action  consequent 
upon  the  erection  and  maintenance  of  a  nuisance.  Ciienarigo 
Bridge  Co.  v.  Paige,  83  N.  Y.  178. 

A  declaration  in  an  action  of  nuisance  for  obstructing  the  plain- 
tiff's right  of  way  must  aver  that  the  obstruction  was  erected  on 
the  way.  In  an  action  for  nuisance,  it  is  sufificient  to  show  that 
the  property  has  been  rendered  less  valuable  for  the  purposes  to 
which  the  owner  has  seen  fit  to  devote  it.  First  Baptist  Church 
V.  Schenectady  &  Troy  R.  R.  Co.  5  Barb.  79.  See  6  Barb.  613. 
The  allegation  in  a  complaint,  in  an  action  iot  damages  by  reason 
of  defendant's  not  keeping  his  privies  and  drains  in  repair,  that 
the  use  of  plaintiff's  cellars  and  the  letting  thereof  were  prevented 
by  the  unlawful  act  of  the  defendant,  is  sufficient  to  authorize  the 
admission  of  evidence  of  the  rental  value  to  show  the  damage 
done,  without  alleging  special  damage.  jfutte  v.  Hughes,  67 
N.  Y.  267.  A  complaint  states  a  cause  of  action  where  it  alleges 
that  a  municipal  corporation  —  the  defendant  —  constructed  a 
drain  to  plaintiff's  lot,  upon  which  it  discharged  its  contents, 
rendering  his  house  unhealthful  and  injuring  it.  Any  excuse  or 
justification  is  an  affirmative  defence  and  must  be  pleaded  and 
proved.  Bradt  v.  City  of  Albany,  5  Hun,  591.  The  complaint 
of  an  owner  abutting  the  street,  who  has  an  easement  and  not  a 
fee  in  the  street,  against  a  street  railway  company  for  laying  its 
track  so  near  the  sidewalk  as  not  to  leave  a  space  sufficient  for 
vehicles  to  stand,  thereby  incommoding  him  and  his  family, 
and  depreciating  the  rental  value  of  his  premises,  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action.  Kellinger  v. 
Forty -second  St.  etc.  R.  R.  Co.  50  N.  Y.  206. 


550  NUISANCE. 


Art.  5.     Pleadings  and  Practice. 


Defendant's  works  discharged  an  offensive  substance  upon 
plaintiff's  lots.  Held,  that  plaintiff  was  not  bound,  at  the  risk  of 
losing  her  right  of  action,  to  avail  herself  of  all  possible  measures 
for  the  purpose  of  carrying  it  away.  Rose  v.  N.  V.  Gaslight  Co. 
8  Week.  Dig.  468.  In  an  action  to  recover  damages  for  injuries 
caused  by  flooding  the  cellar  of  the  plaintiff,  through  excavations 
in  the  public  street  made  by  defendant,  Jield,  not  a  defence  that 
the  water  got  into  the  premises  of  plaintiff  through  holes 
or  openings  in  the  wall  of  the  cellar,  the  plaintiff  being 
under  no  obligation  to  make  the  wall  impervious  to  water 
that  might  be  wrongfully  thrown  on  his  premises.  Mairs 
V.  Manhattan  Real  Estate  Assn.  89  N.  Y.  498,  afifirming  15 
J.  &  S.  31  ;  citing  St.  Peter  v.  Dennison,  58  N.  Y.  416.  In 
an  action  for  wrongfully  discharging  refuse  tan  bark  into 
plaintiff's  pond,  which  was  on  the  same  stream  and  below  the 
tannery,  held,  that  it  was  no  defence  that  plaintiff  might  have 
prevented  the  pond  from  filling  up  by  removing  the  slash  boards 
on  his  dam,  or  by  opening  a  waste  gate.  West  v.  Kiersted,  15 
Week.  Dig.  549.  A  land  owner  cannot  recover  damage  against  a 
village  caused  by  sewage  which  enters  upon  his  lot  from  an  old 
sewer  in  one  of  the  streets,  through  a  sewer  or  pipe  built  on  his 
own  land,  with  his  knowledge  and  consent,  if  not  at  his  request. 
Searing  v.  Village  of  Saratoga  Springs,  39  Hun,  307;  citing 
Matter  of  Rhine  lander,  68  N.  Y.  105. 

Where  a  city,  by  the  exercise  of  its  power,  has  created  a  private 
nuisance  on  plaintiff's  premises,  it  incurs  the  duty  of  adopting 
such  means  as  shall  abate  the  nuisance ;  and  having  the  power  to 
perform  it,  its  omission  to  do  so  renders  it  liable.  Seifert  v.  City 
of  Brooklyn.,  loi  N.  Y.  136.  The  liability  of  a  municipal  corpo- 
ration for  a  nuisance  is  the  same  as  that  of  an  individual.  Chap- 
man V.  City  of  Rochester,  23  Week.  Dig.  424.  To  maintain  an 
action  it  is  not  necessary  that  all  the  injury  should  be  the  result 
of  the  nuisance  sought  to  be  charged ;  if  it  is  the  principal  agent 
and  would  alone  produce  the  result,  it  is  sufficient  at  least  as  evi- 
dence of  plaintiff's  right  of  action.  Mulligan  v.  Elias,  12  Abb. 
259;  McKeon  v.  See,  51  N.  Y.  300. 

The  owner  of  premi.ses  who  has  demised  them   is  regarded  as  |  j 

upholding  a  nuisance  by  receiving  rent  therefor;  so  when  he 
conveys  with  warranty,  but  not  by  quitclaim  deed.  Hanse  v. 
Cowing,  I   Lans.   288;  Irvine  v.  Wood,   51    N.   Y.    224;  Blunt  v. 


I 

i 


NUISANCE.  551 


Art.  5.     Pleadings  and  Practice. 


Aiken,  18  Wend.  522;  Waggoner  v.  Jermain^  3  Den.  306.  Every 
continuance  of  a  nuisance  i.s,  in  judgment  of  law,  a  fresh  nui- 
sance—  Vedder  v.  Vedder,  i  Den.  257;  Beckivitk  v.  Griswold,  29 
Barb.  291 — and  successive  actions  will  lie.  Phillips  \.  Terry,  3 
Keyes,  313.  An  action  lies  for  the  nuisance  affecting  vacant 
lands  to  the  detriment  of  their  value.  Buckman  v.  Green,  9 
Hun,  225.  The  fact  that  plaintiff  for  one  or  two  winters  took  ice 
from  a  dam  built  by  defendant,  the  waters  of  which  became  stag- 
nant and  a  nuisance,  does  not  constitute  such  an  acquiescence  in 
the  continuance  of  the  dam  as  to  estop  her  from  claiming  that  it 
was  a  nuisance,  especially  after  its  effects  were  more  clearly  dis- 
covered.    Adams  v.  Popham,  y6  N.  Y.  410. 

Precedent  for  Complaint. 

SUPREME  COURT  — Ulster  County. 


PATRICK  FURLONG 

agst. 
WILLIAM   H.  TOWNSEND. 


The  complaint  of    the  above-named   plaintiff   respectfully  shows 
to  this  court:   That  he  now  is  and  for  many  years  has  been  the  owner 
and  in  the  occupancy  of  the  following  described  premises,  to  wit: 
(Here  insert  description.)     That  the  defendant  has  for  many  years 
occupied  the  lot  adjoining  the  plaintiff's  premises  on  the  north  and 
has  constructed  a  drain  or  sewer  from  the  house  so  occupied  by  him, 
which  discharges  on  plaintiff's  premises;  that  the   sewage  thus  dis- 
charged  from  defendant's    house    through    such    sewer   emits  foul 
and  offensive  odors  and  injuriously  affects  the  health  of  this  plain- 
tiff and  his  family;  that  this  plaintiff  has  caused  a  request  of  the  de- 
fendant to  be  made  that  he  disuse  said  sewer  and  that  he  discharge 
the  sewage  from  his   house   elsewhere,   but  that  the  defendant,  dis- 
regarding said  request,  continues  to  discharge  the  foul  and  offensive 
accumulations  of  his  house  on  the  plaintiff's' lands;  that  by  reason  of 
the  premises  this  plaintiff  has  sustained  large  damages,  and  his  own 
residence  has  been  made  an  unfit  and  unwholesome  dwelling  place  for 
himself  and   his   family  and   so   continues   to   be.     Wherefore,  this 
plaintiff  prays  judgment  that  the  defendant  be  compelled  to  remove 
said  sewer  and  to  discharge  the  sewage  from  his  house  elsewhere 
and  where  it  will  not  be  a  nuisance  to  this  plaintiff  and   his  family, 
and  that  this  plaintiff  may  also  have  judgment  for  his  damages  so  by 
hirn  sustained  as  aforesaid,  with  costs,  and  for  such  further  or  other 
relief  as  this  court  may  deem  proper  and  just. 

CHAS.  A.  &  E.  FOWLER, 

Plaintiff's  Attorneys. 


552 


NUISANCE. 


Art.  5.     Pleadings  and  Practice. 


Complaint  Asking  Injunction. 

SUPREME  COURT  — Orange  County. 
MARGARET  BOHAN, 

"  y  122  N.   Y.    18. 

THE    PORT  JERVIS    GAS   LIGHT   COM- 
PANY. 


The  plaintiff,  by  this  her  complaint  in  the  above-entitled  action, 
alleges: 

1.  That  at  the  time  and  times  hereinafter  set  forth,  the  defendant 
was  and  still  is  a  domestic  corporation  duly  created  and  incorporated 
as  such  under  and  pursuant  to  the  Laws  of  the  State  of  New  York 
residing  and  transacting  business  as  such  at  Port  Jervis,  Orange 
county,  N.  Y. 

2.  That  at  the  time  and  times  hereinafter  set  forth  the  plaintiff 
was  and  still  is  the  owner  of  the  freehold  situated  on  the  east  side 
of  Brown  street,  in  the  village  of  Port  Jervis,  Orange  county,  N.  Y., 
known  and  designated  on  the  map  of  said  village  as  Lot  No.  162, 
which  said  premises  were  at  the  time  and  times  hereinafter  set  forth 
and  still  are  used  and  occupied  by  the  plaintiff  as  a  dwelling. 

3.  Upon  information  and  belief  that  at  the  time  and  times  herein- 
after set  forth  the  defendant  was  and  still  is  tenant  of  the  freehold 
situated  on  said  Brown  street  in  said  village  of  Port  Jervis,  adjoining 
the  said  described  premises  of  the  plaintiff  upon  which  the  defendant 
has  for  several  years  past  and  still  does  manufacture  gas  and  for 
such  purposes  has  erected  and  maintained  and  still  maintains  upon 
its  said  described  premises  in  close  proximity  to  said  described 
premises  of  the  plaintiff,  a  gas  house,  tanks  and  all  appurtenances 
thereto  for  the  manufacture  of  said  gas. 

4.  That  about  the  year  1880  the  defendant  erected  a  new  tank  for 
the  purposes  of  its  said  gas  works  upon  its  said  premises,  the  south- 
ern side  or  end  of  which  was  placed  and  now  stands  within  a  few  feet 
of  plaintiff's  said  premises. 

5.  That  about  the  year  1880,  the  defendant  began  and  ever  since 
has  and  still  does  manufacture  its  said  gas  at  its  said  works  from  a 
certain  kind  of  oil  called  naphtha^  and  that  said  tank  erected  near 
plaintiff's  said  premises  as  aforesaid  was  and  is  used  to  store  and 
contain  said  naphtha  for  the  purposes  aforesaid. 

6.  That  said  naphtha  is  a  penetrating,  offensive,  noxious,  unhealthy 
and  sickening  mineral  substance  and  destructive  to  the  health  and 
comfort  of  those  required  to  be  and  remain  in  close  proximity  to  it. 

7.  That  said  tank  was  erected  and  is  maintained  in  a  negligent 
and  unskillful  manner  and  by  reason  of  the  negligence  and  want  of 
care  upon  the  part  of  the  defendant  in  the  construction,  use  of  and 
maintenance  of  said  tank,  and  its  said  works,  the  odor,  injury  and 
damage  hereinafter  set  forth  resulted  to  the  plaintiff  and  her  said 


NUISANCE.  553 


Art.  5.      Pleadings  and  Practice. 


property,  and  also  by  reason  of  the  erection  and  use  of  said  tank  and 
said  works  of  the  defendant  as  aforesaid  and  the  negligent  and  un- 
skillful manufacture  of  gas  from  naphtha  as  aforesaid  the  defendant 
has,  during  the  time  and  times  aforesaid,  to  wit:  since  about  August 
ist,  1880,  and  still  does  maintain  a  nuisance  especially  injurious  to 
the  comfort  and  enjoyment  of  the  plaintiff  and  her  family  and  also 
especially  injurious  to  the  rental  value  of  said  premises  of  the  plain- 
tiff, as  by  reason  thereof  the  plaintiff  and  her  said  family  have  since 
said  time  and  still  do  suffer  great  annoyance,  discomfort  and  ill- 
health  from  the  offensive,  noxious,  unhealthy  and  sickening  odor  of 
said  naphtha  and  also  by  reason  thereof  the  plaintiff  has  since  said 
time  and  still  does  suffer  loss  and  damage  to  her  said  property  as  the 
same  has  not  during  the  said  time  and  has  no  rental  value  whatever, 
and  is  by  reason  of  said  nuisance  rendered  useless  and  valueless  to 
the  damage  of  the  plaintiff  of  the  sum  of  $3,000. 
Wherefore,  the  plaintiff  demands: 

1.  Judgment  against  the  defendant  for   the   said   sum  of  $3,000 
with  costs. 

2.  That  the  defendant  be  enjoined  from  continuing  its  said  nui- 
sance and  damage  to  the  property  and  comfort  of  the  plaintiff. 

3.  That  the  plaintiff  have  such  other  and  further  order  or  relief  or 
both  as  shall  be  just,  equitable  and  proper  to  be  granted  herein. 

T.   J.   &  J.  W.   LYON, 


Attorneys  for  Plaintiff. 


Complaint. 

SUPREME  COURT  — Delaware  County. 


ABIJAH  WAKEMAN 
SYLVIA  WILBUR  and  JACOB  WILBUR. 


-    147  N.  Y.  664. 


The  complaint  of  the  above  named  plaintiff  respectfully  shows 
that  the  plaintiff'  before  and  at  the  time  of  the  committing  of  the 
grievances  hereinafter  mentioned,  was  and  from  thence  hitherto  has 
been  and  still  is  lawfully  seized  of  an  estate  in  fee  simple  in  and  to  a 
farm  situate  in  the  town  of  Walton  in  said  county  of  Delaware,  being 
a  part  of  lot  174,  Rapelyea's  Patent,  consisting  of  200  acres  of  land 
more  or  less;  that  during  the  time  above  mentioned  and  for  more 
than  thirty  years  prior  thereto  has  been  and  now  is  in  actual  pos- 
session of  said  property  carrying  on  the  business  of  farming  and 
lumbering. 

That  there  is  and  for  more  than  thirtv  vears  prior  to  the  com- 
mencement of  this  action  has  been  a  public  highway  leading  from  the 
plaintiff's  farm  to  the  village  of  Walton,  which  has  been  during  that 
time  assessed  in  all  respects  as  a  public  highway  and  to  the  time  of 
the  commission  of  the  wrongful  acts  hereinafter  alleged,  traveled  by 
this  plaintiff  freely  and  at  all  times  and  by  him  used  in  drawing  wood, 


554 


NUISANCE. 


Art.  5.     Pleadings  and  Practice. 


lumber,  logs,  hay  and  other  produce  to  market,   it  being  the  only- 
direct  road  to  the  village  of  Walton  and  the  railroad. 

That  the  defendants  are  in  possession  of  a  farm  lying  between  the 
said  lands  of  the  plaintiff  and  the  said  village  of  Walton,  through 
which  the  said  highway  passes;  and  that  for  more  than  thirty  years 
prior  to  the  said  wrongful  acts  the  lands  adjoining  the  said  highway 
through  the  said  farm  of  the  defendants  for  a  rod  and  a  half  on  each 
side  thereof  were  uninclosed  and  were  dedicated  by  the  grantor  of 
the  defendants  to  public  use. 

That  on  or  about  the  ist  day  of  April,  1882,  and  at  other  times 
thereafter  and  while  the  plaintiff  was  entitled  to  a  free  and  uninter- 
rupted use  of  said  road,  the  defendants,  well  knowing  the  premises 
and  with  intent  to  hinder  and  delay  and  injure  this  plaintiff  and  to 
prevent  him  from  traveling  on  or  along  the  said  highway  or  using 
it  in  drawing  wood,  lumber  and  other  material  to  market  as  he  law- 
fully might,  wrongfully  put  up  or  caused  to  be  put  up  and  erected  a 
certain  fence  in  the  said  highway  opposite  to  their  said  lands  and 
has  kept  and  continued  the  same,  thereby  obstructed  the  said  high- 
way and  pervented  the  free  and  uninterrupted  use  of  the  same,  and 
that  said  fence  during  the  winter  season  causes  the  snow  to  drift  and 
fill  the  said  road  and  renders  it  at  all  times  unsafe  and  a  portion  of 
the  time  absolutely  impassable. 

That  by  reason  of  said  obstructions,  said  plaintiff  has  not  only 
been  greatly  inconvenienced  and  annoyed  but  has  been  hindered  and 
prevented  from  using  and  traveling  the  said  road  as  during  all  the 
time  he  otherwise  would  and  of  right  ought  to  have  privilege  of  doing, 
and  has  been  deprived  of  the  profits,  benefits  and  advantages  that 
he  might  have  made  and  received  by  using  and  traveling  the  same, 
and  has  been  obliged  to  spend  much  time,  to  wit,  at  least  thirty  days, 
in  shoveling  the  snow  and  making  roads  around  said  obstructions 
and  has  been  thereby  hindered  and  delayed  and  obliged  to  spend 
large  sums  of  money  in  drawing  logs,  wood  and  lumber  and  other 
material  around  said  obstructions,  and  was  actually  prevented  from 
drawing  large  quantities  of  wood  and  lumber,  to  wit,  about  100  cords 
of  wood  and  30,000  feet  of  lumber,  and  delivering  the  same  to  cus- 
tomers and  parties  in  the  village  of  Walton,  whereby  he  lost  the  op- 
portunity of  selling  and  it  greatly  deteriorated  upon  his  hands. 

And  plaintiff  further  alleges  that  on  several  occasions  Vv^hen 
lawfully  driving  along  said  road,  his  load  was,  without  fault  or  negli- 
gence on  his  part,  overturned  by  the  said  fence,  his  sleigh  and 
harness  broken  and  his  team  injured,  and  said  plaintiff  has  been 
otherwise  greatly  damaged  by  the  building  and  maintaining  of  the 
said  obstructions  amounting  in  the  aggregate  to  the  sum  of  $200. 

And  plaintiff  further  alleges  that  he  now  has  200  cords  of  wood 
and  300,000  feet  of  lumber  to  draw  from  his  farm  and  dehver  to  cus- 
tomers and  parties  in  the  village  of  Walton;  that  if  the  defendants 
are  permitted  to  keep  up  and  continue  the  said  fence  said  plaintiff 
will  be  obliged  to  draw 'the  same  around  said  obstruction  and  by  a 
circuitous  and  inconvenient  way  and  at  a  great  and  additional 
expense. 

Plaintiff  further  alleges  that  on  or  about  the   15th  day  of  Decern- 


NUISANCE. 


555 


Art.  5.     Pleadings  and  Practice. 


ber,  1885,  he  was  obliged,  in  order  to  pass,  to  take  down  and  remove 
a.  portion  of  said  fence  as  he  lawfully  might;  that  the  defendants 
immediately  thereafter  rebuilt  said  fence  in  the  said  highway  and  so 
as  to  obstruct  the  same  and  to  hinder  and  prevent  its  use  by  this 
plaintiff,  and  threatened  the  plaintiff  if  he  again  interfered  with  said 
obstruction,  and  has  prevented  the  plaintiff  from  removing  the  same. 
That  prior  to  this  action,  said  plaintiff  demanded  that  they  remove 
said  fence,  which  the  defendants  refused  to  do,  claiming  they  had  the 
right  to  build  the  said  fence  and  threatened  to  continue  the  same. 

Wherefore,  plaintiff  demands  judgment  that  the  said  fence  be 
removed  and  said  defendants  required  to  restore  said  road  to  its 
former  condition  and  as  it  was  used  for  more  than  twenty  years 
before  the  erection  of  said  fence,  and  that  the  defendants  and  each 
of  them  be  perpetually  enjoined  from  obstructing  the  said  highway 
or  interfering  with  the  plaintiff's  rights  therein,  and  that  the  plaintiff 
recover  of  the  defendants  the  sum  of  $200  damages  sustained  by  the 
plaintiff  on  account  of  said  obstruction,  and  the  costs  of  this  action. 

FANCHER  &  SEWALL, 

Plaintiff's  Attorneys, 

Complaint  Asking  Injunction. 

SUPERIOR  COURT  OF  THE  CITY  OF  NEW  YORK. 


LAWRENCE  J.  CALLANAN  and  JAMES  A. 
KEMP 


agst. 


GEORGE  F.  OILMAN. 


107  N.  Y.  360. 


The  complaint  of  the  plaintiffs  respectfully  shows: 
That  the  plaintiffs  are  copartners  doing  business  as  such  under 
the  firm  name  of  Callanan  &  Kemp,  at  the  store  now  known  by  the 
number  41  Vesey  street,  in  the  city  of  New  York,  which  said  store, 
beginning  about  125  feet  west  of  Church  street,  has  a  frontage  on  the 
south  side  of  Vesey  street  of  thirty-two  feet  and  six  inches,  and 
extends  in  depth  eighty-one  feet,  being  half  the  distance  between 
Vesey  and  Fulton  streets,  and  is  five  stories  in  height,  and  was  built 
during  the  year  1882,  expressly  for  the  plaintiffs  and  expressly 
adapted  to  and  for  the  accommodation  of  their  business  by  Mr.  Cal- 
lanan, one  of  the  plaintiffs,  who  is  the  owner  of  said  premises,  and 
has  leased  the  same  to  the  plaintiffs,  for  the  purpose  of  transacting 
their  business  for  a  term  ending  May  ist,  1884,  with  the  privilege  of 
renewal. 

That  for  about  forty  years  prior  to  the  erection  of  said  store  build- 
ing, the  plaintiffs  and  their  predecessors  in  business  have  carried  on 
at  the  same  stand,  but  in  a  building  of  somewhat  less  capacity,  a 
wholesale  and  retail  grocery  business,  in  which  they  invested  large 
capital,  and  which  business  they  still  continue  at  the  said  new  build- 
ing, and  said  plaintiffs  and  their  said  store  and  business  were,  during 


556  NUISANCE. 


Art.  5.     Pleadings  and  Practice. 


said  period,  and  now  are  well  known  in  the  city  of  New  York  and 
elsewhere,  and  said  plaintiffs  had  and  still  have  numerous  patrons 
and  customers,  by  far  the  large  portion  of  whom  have  been  accus- 
tomed to  come,  and  still  come,  to  said  store  along  the  southerly  side- 
walk of  Vesey  street  from  the  direction  of  Church  street  and  Broad- 
way, and  return  in  the  same  way. 

That  during  a  1  the  time  of  plaintiffs'  occupation  of  said  store  and 
premises  until  the  acts  herein  complained  of,  plaintiffs  and  their 
employes,  patrons  and  customers  have  enjoyed  free  and  uninter- 
rupted use  of  said  passage  along  the  sidewalks  of  Vesey  street,  which, 
from  before  the  occupation  by  these  plaintiffs  of  said  premises,  was 
and  still  is  a  public  street  of  the  city  of  New  York,  almost  wholly 
devoted  to  business,  upon  and  along  the  sidewalks  of  which  these 
plaintiffs  and  their  employes  and  patrons  and  all  persons  com- 
plained of  could  freely  and  uninterruptedly  pass  and  re-pass  without 
hindrance  or  obstruction  by  any  one. 

That  by  reason  of  the  premises,  said  store  and  the  lease  thereof  to 
the  plaintiffs  was  and,  but  for  the  acts  of  the  defendant  herein  com- 
plained of,  still  is  of  great  value  to  the  plaintiffs. 

That  defendant,  well  knowing  the  premises,  and  with  intent  to 
injure  the  plaintiffs  and  their  said  business,  caused  to  be  constructed 
a  plank  bridge  or  way,  of  the  width  of  three  feet  and  about  sixteen 
inches  in  length,  which  he  placed  or  caused  to  be  placed  over  and 
across  the  southerly  sidewalk  of  said  Vesey  street,  supporting  one 
end  thereof  at  the  stoop  line  of  the  premises  Nos.  35  and  37  Vesey 
street  at  a  distance  of  about  thirty-five  feet  from  the  easterly  line  of 
plaintiffs'  said  store  at  an  elevation  above  the  sidewalk  of  fully 
twelve  inches,  and  resting  the  other  end  on  the  roadway  of  said 
Vesey  street  on  a  wooden  horse  or  rest,  so  that  at  the  curb  side 
planking  is  elevated  above  the  sidewalk  fully  two  and  one-half  feet, 
so  forming  a  continuous  way  or  bridge  from  the  store  Nos.  35  and 
37  Vesey  street  to  the  roadway  of  said  Vesey  street  directly  across 
and  wholly  obstructing  the  sidewalk,  and  preventing  the  plaintiffs 
and  their  employes  or  patrons  and  all  persons  from  passing  and  re- 
passing along  said  sidewalk  to  and  from  Church  street,  and  to  and 
from  plaintiff's'  said  store  to  the  detriment  and  great  injury  of 
plaintiffs  and  their  said  business. 

That  said  defendant  and  his  agents  and  servants  have,  contrary 
to  law  and  the  ordinances  of  the  city  of  New  York,  maintained  and 
kept  the  said  obstruction  at  said  place  day  after  day,  and  every  day 
now  for  more  than  six  months  next  preceding  the  commencement 
of  this  action  from  three  to  five  hours  each  day,  and  on  an  average 
of  fully  four  hours  each  day,  during  the  business  hours  of  the  day, 
and  notwithstanding  the  defendant  has  been  often  requested  to 
remove  the  same  and  to  cease  to  maintain  the  same,  he,  said 
defendant,  refuses  to  discontinue  the  said  obstruction  or  to  remove 
the    same,  to  the  great  and  irreparable  injury  of  these  plaintiffs. 

That  the  obstruction  aforesaid,  maintained  contrary  to  law  and 
threatened  to  be  continued  by  said  defendant,  is  a  public  nuisance, 
of  special  injury  to  plaintiffs,  and  plaintiffs  have,  as  they  are  informed 
and  advised,  no  adequate  remedy  at  law  therefor. 


NUISANCE.  557 


Art.  5.      Pleadings  and  Practice. 


That  unless  the  defendant  and  his  servants  and  employes  be 
restrained  by  an  injunction  order  of  this  court,  the  plaintiffs  can 
only  obtain  compensation  for  the  damages  suffered  by  them  by  com- 
mencing actions  for  each  renewal  of  the  nuisance,  which  would  cause 
a  multiplicity  of  actions,  and  while  the  injury  to  plaintiffs  caused  by 
the  said  nuisance  is  great  and  irreparable,  and  if  not  prevented  will 
increase  with  each  renewal,  it  is  incapable  of  exact  measurement  in 
damages  and  cannot  be  adequately  compensated  in  money. 

Wherefore,  the  plaintiffs  demand  judgment  that  the  defendant,  his 
agents,  servants  and  employes  be  restrained  by  an  injunction  order 
of  this  court  from  obstructing  the  southerly  side  of  Vesey  street  in 
front  of  the  premises  Nos.  35  and  37  Vesey  street  by  any  plank  way 
or  bridge  or  other  obstruction  elevated  above  the  sidewalk  and 
reaching  from  said  store  or  from  the  stoop  line  in  front  of  said  store 
to  the  roadway  of  said  Vesey  street,  or  from  hindering  or  prevent- 
ing the  plaintiffs  or  their  employes,  servants,  customers  and 
patrons  from  the  free  and  unobstructed  use  or  passage  of  and  along 
the  sidewalk  of  said  Vesey  street  in  front  of  said  premises  Nos.  35 
and  37  Vesey  street,  by  any  like  obstruction,  and  that  they  may 
have  such  injunction  during  the  pendency  of  this  action,  with 
such  other  and  further  relief  in  the  premises  as  may  seem  proper  and 
in  accordance  with  equity,  with  costs. 

EDWIN   M.   WIGHT, 

Plaintiffs'  Attorney. 

Sub.  2.   Practice. 

In  an  action  to  abate  a  nuisance  and  recover  the  damages  sus- 
tained thereby,  trial  by  jury  is  a  matter  of  right.  Even  if  the 
complaint  is  in  form  as  for  equitable  relief  against  the  continu- 
ance of  a  nuisance,  and  the  prayer  for  damages  may  be  regarded 
as  incidental  thereto,  yet,  as  the  existence  of  the  alleged  nuisance 
and  the  amount  of  damages  were  both  inquired  of  by  jury  before 
the  adoption  of  the  present  Constitution,  the  constitutional  guar- 
anty of  trial  by  jury  applies  to  such  an  action  as  one  of  the  cases 
in  which  it  has  been  heretofore  used.  Hudson  v.  Caryl,  44  N.  Y. 
556;  followed  in  Dorr  v.  Dansvillc  Gas-light  Co.  18  Hun,  274. 
But  see  jfohnston  v.  Manhattan  Raihvay  Co.  41  St.  Rep.  682 ; 
Dcanv.  Bcnn,  69  Hun,  519,  cited  under  Article  I.  See  §  968, 
Code,  giving  right  to  jury  trial.  Rut  this  dcci-sion  is  ex- 
plained in  Parker  v.  Lancy,  i  T.  &  C.  590,  as  not  applying 
to  equitable  actions  for  restraining  a  nuisance.  Where  a  com- 
plaint asked  judgment  for  damages,  and  for  an  abatement  of  an 
alleged  nuisance,  and  also  for  an  injunction  restraining  a  continu- 
ance of  the  nuisance,  held,  plaintiff  was  not  of  right  entitled  to  a 
jury  trial.      Cogsivcll  v.  N.  V.  &  N.  H.  R.  R.  Co.   105   N.  Y.  319. 


558  NUISANCE. 


Art.  5.     Pleadings  and  Practice. 


Where  defendants  have  a  right  to  have  the  issues  tried  by  a  jury, 
but  instead  they  are  brought  on  before  the  court  without  objec- 
tion, defendants  will  be  held  to  have  waived  a  jury  trial,  and  the 
decision  of  the  court  will  stand  in  place  of  the  verdict  of  a  jury. 
Hutchins  v.  Smith,  63  Barb.  251.  Where  the  verdict  was  against 
uncontroverted  evidence  as  to  a  livery  stable  being  a  nuisance,  an 
order  setting  aside  a  verdict  was  not  disturbed  on  appeal.  Hor- 
ton  V.  Brownsey,  10  St.  Rep.  800. 

An  action  for  nuisance  must  be  tried  in  the  county  in  which 
the  subject-matter  of  the  action  was  situated.  Where  it  was  an 
action  for  depositing  foul  substances  in  the  river,  it  was  held  that 
the  venue  should  be  laid  in  that  county  where  the  nuisance  was 
caused  by  such  deposit.  The  unlawful  act  was  done  in  the  county 
where  the  matter  was  deposited  in  the  river.  Home  v.  City  of 
Buffalo,  49  Hun,  j^i;  S.  c.  15  Civ.  Pro.  R.  81. 

Remedy  by  action  is  not  barred  by  the  act  of  abating  the  nui- 
sance. Pierce  V.  Dart,  7  Cow.  609;  Lansing  v.  Smith,  8  Cow. 
146,  afifirming  4  Wend.  9.  No  length  of  time  will  legalize  an 
unauthorized  obstruction  of  a  navigable  stream.  DeLaney  v. 
Blizzard,  7  Hun,  7.  Nor  the  use  of  a  vault  under  a  sidewalk  of 
a  street  where  the  ownership  of  the  soil  is  not  an  abutting  owner. 
Patten  v.  New  York  Elevated  R.  R.  Co.  3  Abb.  N.  C.  306. 

Making  no  objection  to  the  creation  of  a  nuisance  does  not 
estop  an  action  unless  its  erection  was  encouraged.  Sjww  v. 
Williams,  16  Hun,  468.  Nor  is  it  a  defence  that  a  nuisance  ex- 
isted before  plaintiff  acquired  his  property.  Mulligan  v.  Elias, 
12  Abb.  (N.  S.)  259.  A  presumptive  right  to  continue  a  nui- 
sance can  only  be  acquired  by  continuous  use  for  twenty  con- 
ecutive  years.  Campbell  v.  Seaman,  63  N.  Y.  568,  afifirming  2 
T.  &C.  231. 

A  writ  of  certiorari  is  the  proper  remedy  to  review  the  deter- 
mination of  a  board  of  health  in  relation  to  the  existence  and 
abatement  of  a  nuisance.  People  ex  rel.  Neiv  York  Central  &  H. 
R.  R.  Co.  V.  Board  of  Health  of  Seneca  Falls,  35  St.  Rep.  411. 

The  voluntary  abatement  of  a  nuisance  after  suit  begun,  will 
not  affect  the  standing  of  the  plaintiff  to  maintain  an  action,  but 
is  suf^cient  basis  for  suit  by  one  injured.  Heather  v.  Hearn,  5 
N.  Y.  Supp.  85.  It  is  not  necessary  before  suit  to  give  notice  to 
defendant  if  he  created  the  nuisance.  Dnnsbach  v.  Hollister,  49 
Hun,  352.      In  an  action  to  enjoin  the  operation  of  an  oil  refinery, 


NUISANCE.  559 


Art.  5.     Pleadings  and  Practice. 


the  refuse  from  which  polluted  plaintiff's  well,  and  for  damages, 
it  was  held  "that  a  jury  was  properly  impaneled  to  try  certain 
questions  of  fact  and  instructed  to  find  on  certain  issues.  Dillon 
V.  Acme  Oil  Co.  2  Supp.  289.  No  recovery  can  be  had  for  past 
damages  beyond  a  period  of  six  years.  Doyle  v.  Manhattan  Ele- 
vated R.  R.  Co.  35  St.  Rep.  373.  Where  pending  an  action  for 
damages  to  premises  caused  by  a  nuisance,  the  owner  sells  and 
conveys  the  premises,  he  may  still  have  judgment  for  such 
damages,  since  it  will  be  presumed  that  the  question  of  the  nui- 
sance affected  the  price  received  to  the  extent  of  the  damages 
recovered.  Dcmby  v.  City  of  Kingston,  14  N.  Y.  Supp.  601. 
But  it  was  held  in  Filson  v.  Crazvford,  5  Supp.  882,  that  when, 
after  bringing  the  action,  plaintiff  parted  with  her  title  to  the 
property,  and  it  did  not  appear  that  she  reserved  her  claim,  be- 
cause of  the  injury  to  the  fee  by  the  nuisance,  she  could  not  main- 
tain the  action. 

The  heirs  of  a  co-owner  of  property,  who  died  after  the  con- 
struction of  the  railroad,  the  maintenance  of  which  as  a  nuisance 
is  sought  to  be  enjoined,  have  an  interest  in  the  subject  matter 
of  the  action  and  are  proper  parties  plaintiff.  The  administratrix 
of  the  deceased  co-owner  is  a  proper  plaintiff,  as  she  is  entitled  to 
the  damages  that  had  accrued  at  the  time  of  his  death.  SJupard 
V.  Manhattan  Ry.  Co.  5  Supp.  189.  Where  a  contractor  under 
defendant  left  a  stone  in  a  public  street  which  was  an  obstruction 
amounting  to  a  nuisance,  in  violation  of  the  city  ordinance, 
the  defendant  was  held  liable  therefor  to  the  person  injured 
thereby.  Skelton  v.  Larkin,  82  Hun,  388,  63  St.  Rep.  553, 
31  Supp.  234,  affirmed,  on  opinion  below,  146  N.  Y.  365. 
The  fact  that  other  persons  than  plaintiff  have  been  injured  in 
consequence  of  an  obstruction  of  a  highway  and  that  it  is  a  pub- 
lic nuisance,  does  not  preclude  a  recovery  by  him  for  the  special 
damage  he  has  suffered.  Where  a  person  using  the  highway  is 
obliged,  in  consequence  of  a  fence  unlawfully  erected  to  take  a 
longer  route  or  clear  away  .snow  drifts  caused  by  the  fence,  he 
may  maintain  an  action  against  the  person  who  caused  the 
obstruction  to  abate  the  nui.sance  and  to  recover  his  special  dam- 
age. The  objection  that  plaintiff  had  an  adequate  remedy  at  law 
under  the  statute  for  the  removal  of  ob.structions  to  the  hicrh- 
ways,  is  not  availing  unless  raised  by  the  pleading  or  at  the  trial. 
Wakeman  v.  Wilbur,  147  N.  Y.  657. 


560  NUISANCE. 


Art.  6.     Relief  Granted  and  Measure  of  Damages. 


An  appeal  will  lie  from  an  order  granting  a  new  trial  in  an 
action  to  abate  a  nuisance  and  recover  damages,  as  such  action  is 
substantially  an  action  for  a  nuisance  and  triable  by  a  jury,  and 
not  within  subdivision  2  of  §  1347  of  the  Code.  Lefrois  v. 
County  of  Monroe,  88  Hun,  109,  34  Supp.  612,  68  St.  Rep.  535. 

ARTICLE    VI. 
Relief  Granted  and  Measure  of  Damages.     §  1662. 

§  1662.  Final  judgment. 

A  final  judgment  in  favor  of  the  plaintiff,  may  award  him  damages,  or  direct 
the  removal  of  the  nuisance,  or  both. 

If,  in  an  action  for  a  nuisance,  the  court  or  jury  reach  the  con- 
clusion that  the  plaintiff's  rights  have  been  invaded  by  the  acts 
of  the  defendant,  and  that  the  latter  has  been  guilty  of  maintain- 
ing a  nuisance,  the  plaintiff  will  be  entitled  to  judgment  for  dam- 
ages or  for  the  removal  of  the  nuisance,  or  for  both.  Hiitchins 
v.  Smith,  63  Barb.  251.  Where  one  wrongfully  erects  and  main- 
tains a  dam  upon  his  lands,  which  sets  back  the  waters  of  a  stream 
upon  the  lands  of  his  neighbor,  a  judgment  is  proper,  directing 
the  lowering  of  the  dam  as  will  abate  the  nuisance.  Rothely  v. 
N.  V.  Rubber  Co.  90  N.  Y.  30.  The  awarding  of  damages  as  well 
as  the  granting  of  an  injunction  in  the  same  action  is  proper  under 
this  section.      Chapman  v.  City  of  Rochester,  23  Week.  Dig.  424. 

Where  the  owner  of  the  fee  of  the  premises  is  himself  in  pos- 
session, the  injury  that  he  sustains  by  reason  of  the  discomfort 
produced  thereby,  where  no  tangible  injury  is  inflicted,  together 
with  the  diminution  in  the  value  of  the  premises,  are  proper  ele- 
ments from  which  to  estimate  the  damages.  If,  by  reason  of  the 
nuisance,  he  is  unable  to  let  his  premises,  or  is  compelled  to  rent 
them  at  a  less  rental  than  he  otherwise  would,  the  measure  of 
damages  would  be  the  injury  to  the  rental  value;  the  difference 
between  the  rental  value  if  no  nuisance  existed,  and  the  rental 
value  with  the  nuisance  there,  is  the  true  mea.sure.  Where  there 
are  no  buildings  upon  the  premises,  but  the  lands  are  laid  out  in  #; 

building  lots  which,  by  reason  of  the   nuisance,  are  reduced  in  ^ 

value,  a  recovery  may  be  had  for  the  difference  between  the  value 
of  the  lots  with  the  nuisance  there,  and  their  value  if  no  nuisance 
existed.  Wood  on  Nuisances,  §  445  ;  Francis  v.  Schoellkopf,  53 
N.   Y.    152;  Peck  V.  Elder,   3  Sandf.    126;  Jiitte  v.  Hughes,  67 


NUISANCE.  561 


Art.  6.     Relief  Granted  and  Measure  of  Damages. 


N.  Y.  267;  IVzW  V.  Stewart,  19  Hun,  272,  Where  plaintiff  in- 
curred expense  in  plumbing  and  fixing  .sewers  and  other  expen.ses 
to  prevent  further  injury  from  failure  of  defendant  to  keep 
premises  and  drains  on  his  premises  in  proper  condition,  /icM, 
that  injuries  sustained  because  of  the  stench  was  a  proper  item  of 
damages.      ^^^uUe  v.  HugJics,  dy  N.  Y.  267. 

Where  the  injury  was  to  the  use  of  the  entire  premises  for  the 
purposes  of  a  dwelling-house,  the  plaintiff's  damages  were  to  be 
determined  by  the  difference  between  the  rental  value  of  the  house 
free  from  and  subject  to  the  nuisance,  and  plaintiff  is  entitled  to 
recover,  in  the  action,  all  the  damages  sustained  up  to  the  time 
of  trial.  Bier  v.  Cooke,  T^y  Hun,  38.  The  measure  of  damages 
for  a  nuisance  to  real  estate  by  the  pollution  of  a  stream  is  the 
difference  in  the  rental  value  free  from  and  subject  to  the 
nuisance.  Chapman  v.  Palmer,  9  Hun,  5 17 ;  s.  C.  77  N.  Y.  51. 
Any  diminution  in  rent  resulting  from  the  injuiy  may  be  con- 
sidered in  the  estimate  of  damages.  ScJnvab  v.  Cleveland,  28 
Hun,  458.  Damages  cannot  be  allowed  for  injuries  after  the 
commencement  of  the  action  and  service  of  an  injunction. 
Matthews  v.  D.  &  H.  Canal  Co.  20  Hun,  433  ;  Duryea  v.  Mayor, 
26  Hun,  120.  But  it  is  competent  to  submit  to  a  jury  whether 
the  allowance  of  interest  is  necessary  to  give  plaintiffs  compensa- 
tion. Mairs  v.  Ma)ihattan  Real  Estate  Association,  89  N.  Y. 
498,  affirming  47  Supr.  Ct.  31.  A  juiy  cannot  give  damages  for 
the  prospective  continuance  of  a  nuisance.  Whitmore  v.  BiscJioff, 
5  Hun,  176.  In  an  action  by  an  abutting  owner  against  a  rail- 
way company  for  damages,  caused  by  unlawfully  changing  the 
grade  of  a  street,  damages  can  be  recovered  only  up  to  the  com- 
mencement of  the  action  — -  the  remedy  of  the  plaintiff  being  by 
successive  actions  for  his  damages  until  the  nuisance  shall  be 
abated.  It  is,  therefore,  improper  to  allow  for  depreciation  in 
the  market  value  of  the  property,  caused  by  the  acts  complained 
of,  as  it  would  be  equivalent  to  the  introduction  of  a  new  action 
for  the  conversion  of  real  property,  which  is  unknown  to  the  law. 
It  seems  the  plaintiff  may  sue  and  recover  his  damages  as  often 
as  he  chooses,  once  a  year,  or  once  in  six  years,  and  have  succes- 
sive recoveries  for  damages.  He  may  enjoin  the  operation  of  the 
railroad  and  compel  the  abatement  of  the  nuisance  by  an  action 
in  equity,  and  where  his  premises  have  been  exclusively  appro- 
priated by  a  railroad  he  may,  individually,  maintain  ejectment. 
[Special  Actions  —  36.] 


562  XUISANXE. 


Art.  6.     Relief  Granted  and  Measure  of  Damages. 


Uline  V.  N.  V.  C.  etc.  R.  R.  Co.  loi  N.  Y.  98.  In  an  action  by 
an  owner  of  a  lot  abutting  on  a  city  .street,  for  damages  sustained 
by  the  erection  of  a  railroad,  substantially  closing  such  street  to 
public  traffic,  he  is  entitled  to  recover  the  depreciation  in  the 
value  of  his  property  by  reason  of  the  erection  of  such  embank- 
ment. Reining  V.  N.  V.,  L.etc.  R.  R  Co.  i  St.  Rep.  733,  distin- 
guishing loi  N.  Y.  98,  supra.  But  it  is  error,  in  estimating  dam- 
ages, to  take  into  consideration  his  loss  of  business  and 
inconvenience  from  noise  and  smoke  incident  to  running  the  cars 
in  operating  the  road.  Renting  v.  N.  V.,  L.  etc.,  R.  R.  Co.  i 
St.  Rep.  733.  Where  annoyance  is  caused  to  an  abutting  owner 
by  a  structure  placed  by  a  street  railroad  company  in  front  of  his 
premises,  if  the  structure  is  lawful  he  is  entitled  to  damages  for 
all  the  annoyance  caused  by  it,  but  it  is  liable  only  for  such  as 
results  from  an  unreasonable  use  of  it.  Mahady  v.  BnsJiwick 
R.  R.  Co.  91  N.  Y.  148.  The  rule  of  damages  in  an  action  by  an 
abutting  owner  for  the  obstruction  of  the  street  is  the  impairment 
of  the  rental  value  of  the  premises  from  the  date  of  plaintiff's 
title  to  the  commencement  of  the  action,  and  the  impairment 
must  be  determined  with  reference  to  the  condition  of  the  premi- 
ses at  the  former  date  and  the  uses  for  which  they  were  then 
rented  or  could  have  been  put  to  without  change.  Greene  v. 
N.  Y.  C.  &  H.  R.  R.  R.  Co.  12  Abb.  N.  C.  124. 

In  an  action  for  damages  by  physicians,  tenants  of  certain 
houses  as  residences  and  homes  for  keeping  and  treating  their 
patients,  against  defendant,  for  constructing  and  operating  an 
elevated  railway  in  the  street  abutting  plaintiff's  premises,  /le/d, 
defendants  were  liable  only  for  the  value  of  the  private  property 
actually  taken,  and  the  diminution  in  value  directly  affected  by 
the  part  taken;  that  the  measure  of  damages  was  the  diminution 
by  such  taking  of  the  rental  value  of  the  whole,  and  that  damages 
for  loss  of  business  were  too  remote.  Taylor  v.  Metropolitan 
EL  R.  R.  Co.  50  Supr.  Ct.  311.  In  an  action  for  damages  for 
overflowing  the  lands  of  plaintiff's  intestate,  by  means  of  embank- 
ments built  by  defendant,  held,  that  damages  caused  by  the  ex- 
tension of  defendant's  roadbed  were  not  to  be  included  in  the 
recovery.  Mager  v.  N.  Y.  C  &  H.  R.  R.  R.  Co.  Abb.  Ann.  1882, 
p.  125.  In  an  action  to  restrain  the  defendants  from  polluting  the 
waters  of  a  ditch,  in  the  vicinity  of  plaintiff's  land  and  dwelling- 
house,  and  to  recover  damages,   the   fact  that   plaintiff  did   not 


NUISANCE.  563 


Art.  6.     Relief  Granted  and  Measure  of  Damages. 


rent  or  propose  to  rent  the  premises  does  not  make  it  improper 
to  admit  evidence  to  show  the  depreciation  in  the  rental  value  of 
the  premises  occasioned  by  the  wrongful  acts  of  the  defendant, 
or  to  award  the  same  to  the  plaintiff  as  pecuniary  damages. 
Michel  Y.  Supervisors,  39  Hun,  47.  Where  a  judgment  restrained 
defendant  from  obstructing  the  sidewalk  in  front  of  his  store  "by 
any  plankway  or  bridge,  or  other  like  obstruction,  elevated  above 
the  sidewalk,  or  from  hindering  plaintiffs,  their  employes  or  cus- 
tomers from  the  free  and  unobstructed  use  of  the  sidewalk," 
held,  too  broad  and  modified  on  appeal  so  as  to  require  defend- 
ant to  refrain  "from  unnecessarily  and  unreasonably  obstructing 
the  sidewalk."      Callanan  v.  Gilman,  107  N.  Y.  360. 

The  right  of  action  in  the  nature  of  a  common  law  right  for 
nuisance  is  preserved  by  §  1660,  and  the  judgment  in  such  an 
action  may  be  for  damages  or  for  the  removal  of  the  nuisance  or 
for  both.  At  common  law  an  action  for  a  nuisance  was  regarded 
as  local  in  its  nature  and  the  venue  was  required  tc  be  laid  in  the 
county  where  the  nuisance  was  situated.  Horny.  City  of  Buffalo, 
15  Civ.  Pro.  R.  81. 

Evidence  of  the  rental  value  of  the  plaintiff's  premises  be- 
fore and  after  the  existence  of  the  nuisance  is  admissible  on 
the  question  of  damages.  Robinson  v.  Smith,  25  St.  Rep.  647. 
In  an  equitable  action  to  restrain  a  nuisance,  damages  may  be 
recovered  down  to  the  time  of  the  trial,  but  in  an  action  at  law 
for  damages  this  is  not  the  rule.  Barrick  v.  Shiffcrdcckcr,  48 
Hun,  355. 

Where  unlawful  acts  depreciated  the  rental  value  of  plaintiff's 
premises,  it  was  held  such  depreciation  was  a  proper  measure  of 
damages,  and  where  such  damages  were  recovered  up  to  time 
of  trial,  is  a  bar  to  future  damages,  although  such  recovery  could 
not  be  had  under  objection  in  an  action  for  nuisance.  Hussncr 
V.  Brooklyn  City  R.  R.  Co.  114  N.  Y.  434,  citing  on  right  to 
recover  damages  only  to  time  of  commencement  of  action, 
Uline  V.  New  York  Central  &  H.  R.  R.  Co.  loi  N.  Y.  98 ;  Pond  v. 
Metropolitan,  etc.  R.  R.  Co.  112  N.  Y.  186. 

In  an  action  for  damages  to  plaintiff's  premises  by  water  negli- 
gently discharged  thereon  from  defendant's  premises,  evidence  of 
the  rental  value  of  plaintiff's  premises  with  and  without  the  dis- 
charge of  such  water  is  proper  on  the  question  of  damages. 
Murray  v.  Archer,   5   Supp.    326.     As  to  right  of  reversioner  to 


564  NUISANCE. 


Art.  6.     Relief  Granted  and  Measure  of  Damages. 


recover  damages,  see  Doyle  v.  Manhattan  Elevated  Co.  12  Supp. 
548,  where  it  is  also  held  the  measure  of  damages  where  they  are 
recoverable,  is  the  difference  on  the  day  of  trial  between  the 
market  value  of  the  property,  with  the  injuries,  and  what  it  would 
have  been  on  the  same  day  if  free  from  injury.  The  measure 
of  damages  in  such  case  is  the  difference  in  the  value  of  the 
property  before  and  after  the  construction  of  the  road.  Morti- 
mer V.  Manhattan  R.  R.  Co.  8  N.  Y.  Supp.  536.  To  entitle 
plaintiff  to  damages  the  complaint  must  be  wholly  based  on  the 
.statute.  Piirton  v.  Watson,  19  St.  Rep.  6.  Rule  of  damages  is 
the  depreciation  of  the  rental  value.  Young  v.  Hurd,  16  St. 
Rep.  385;  Schzvah  v.  Cleveland,  28  Hun,  458;  Colrick  v.  Swin- 
burne, 105  N.  Y.  503 ;  Van  Buren  v.  Fishkill  and  Matteazvan 
Water  Works,  50  Hun,  448;  S.  C.  21  St.  Rep.  438,  3  Supp.  336; 
Greejie  v.  Nezv  York  Central  &  H.  R.  R.  Co.  12  Abb.  N.  C.  124; 
Drueker  v.  Manhattan  Ry.  Co.  5 1  Supr.  429 ;  Taylor  v.  Metro- 
politan Elevated  R.  50  Supr.  311. 

Damages  to  a  remainderman  is  the  difference  in  the  market 
value  before  and  after  the  injury  sustained,  to  be  estimated  by 
taking  the  damages  to  the  fee  and  apportioning  it  between  the 
life  tenant  and  the  remainderman  according  to  the  annuity  tables. 
Thompson  v.  Manhattan  R.  R.  Co.  6  Supp.  929.  As  to  when 
interest  is  to  be  allowed,  see  Dnryea  v.  Mayor,  26  Hun,  120, 
citing  Mairs  v.  Manhattan  Real  Estate  Assoeiation,  89  N.  Y.  498; 
Par  rot  t  v.  Knickerbocker  Ice  Co.  46  N.  Y.  361  ;  Walrath  v.  Red- 
field,  18  N.  Y.  457. 

In  case  of  a  glaring  public  nuisance,  proof  of  slight  special 
injury  is  sufificient  to  give  a  plaintiff  standing  in  court  for  redress. 
Flynn  v.  Taylor,  26  St.  Rep.  649.  A  plaintiff  may,  under  this 
article,  in  the  same  action,  recover  damages  resulting  from  a  nui- 
sance and  obtain  an  injunction  against  its  continuance.  Robinson 
V.  Smith,  25  St.  Rep.  647,  7  Supp.  38.  If  a  person  destroys  an 
obstruction  in  a  river  on  the  ground  that  it  is  a  public  nuisance, 
he  must  be  prepared  to  show  that  he  did  it  under  the  require- 
ment of  the  court  and  overruling  public  necessity.  Coonley  v. 
City  of  Albany,  57  Hun,  327,  32  St.  Rep.  411,  10  Supp.  512. 
A  private  action  for  corruption  of  the  air  by  offensive  odors  can 
only  be  maintained  by  one  who,  as  the  owner  of  it,  has  some 
legal  interest  as  lessee  or  otherwise  in  land,  the  enjoyment  of 
which  is  affected  by  the  nuisance,  and  where  it  appeared  that  the 


1 


1 


NUISANCE.  565 


Art.  6.     Relief  Granted  and  Measure  of  Damages. 


property  affected  by  the  nuisance  was  owned  by  the  wife  of  the 
plaintiff,  it  was  held  plaintiff  could  not  maintain  the  action. 
Kavmiaugh  v.  Barber,  131  N.  Y.  211,  43  St.  Rep.  283.  A 
municipal  corporation  can  prevent  the  erection  of  a  nuisance 
upon  lands  dedicated  to  the  use  of  the  inhabitants  of  the  city 
without  the  aid  of  a  special  statute.  City  of  CoJiocs  v.  Delaware 
&  Hudson  Canal  Co.  47  St.  Rep.  612.  A  person  erecting  or 
maintaining  an  actual  nuisance  is  liable  to  an  action  at  the  suit  of 
another  who  has  sustained  special  damages  therefrom.  Adams 
V.  Pophavi,  yG  N.  Y.  410. 

The  damages  are  limited  to  the  actual  injuries  sustained. 
Lndloiv  V.  Yonkers,  43  Barb.  493 ;  Kane  v.  Johnson,  9  Bosw.  1 54 ; 
Albert  v.  Bleecker  St.  Ry.  Co.  2  Daly,  389.  For  nuisance  affect- 
ing the  occupation  of  realty,  the  measure  of  damages  is  the  loss 
of  rents  or  the  depreciation  in  rental  value.  Murray  v.  Archer, 
5  Supp.  326;  Wicl  V.  Steivarf,  19  Hun,  272;  Bier  v.  Cooke,  37 
Hun,  38.  For  injuries  permanently  affecting  the  realty,  the 
measure  of  damages  is  the  difference  between  what  the  prop- 
erty was  worth  before  and  after  the  injury.  Peek  v.  Elder,  3 
Sandf.  126;  Ruckinan  v.  Greene,  9  Hun,  225.  Where  the  injury 
is  not  permanent  in  its  character,  damages  cannot  be  recovered 
for  injuries  resulting  from  it  subsequent  to  the  commencement 
of  the  action.  Dnryea  v.  New  York,  26  Hun,  120;  Blnnt  v. 
McCormiek,  3  Den.  283.  Nominal  damages  are  recoverable  even 
though  the  property  has  actually  been  benefited  by  the  nuisance. 
Franeis  v.  Sehoellkopf,  53  N.  Y.  153.  The  voluntary  abatement 
of  a  nuisance  by  the  defendant  after  the  commencement  of  an 
action,  does  not  effect  the  plaintiff's  right.  Heather  v.  Hearn 
5  Supp.  85.  Where  substantial  injury  has  been  suffered,  an 
award  of  nominal  damages  is  error.  Smith  v.  Ingersoll-Sergeant 
Rock-drill  Co.  12  Misc.  5,  33  Supp.  70,  66  St.  Rep.  727,  revers- 
ing 7  Misc.  374,  27  Supp..  907. 


566 


NUISANCE. 


An.  6.     Relief  Granted  and  Measure  of  Damages. 


Judgment  for  Damages  and  Injunction. 

At  a  circuit  of  the  Supreme  Court,  held  in  and  for  the  Second  Judi- 
cial Department  at  the  court  house,  in  the  village  of  Goshen, 
Orange  county,  N.  Y.  on  the  24th  day  of  June,  1886. 

Present  —  Hon.  Edgar  M.  CuUen,  Justice. 


MARGARET    BOHAN 


agst. 


122  N.  Y.  18. 


THE   PORT   JERVIS    GAS-LIGHT    COM 
PANY. 


The  above-entitled  action  having  been  brought  to  trial  at  a  Circuit 
Court  held  at  the  court  house  in  Goshen,  N.  Y.,  on  the  24th  day  of 
June,  1886,  before  Hon.  Edgar  M.  Cullen  and  a  jury,  and  the  jury 
having  rendered  a  verdict  in  favor  of  the  plaintiff  and  against  the 
defendant  for  the  sum  of  $340.  Now,  on  motion  of  T.  J.  &  J. 
W.  Lyon,  attorneys  for  the  plaintiff,  it  is 

Ordered,  adjudged  and  determined  by  said  court  that  the  plaintiff, 
Margaret  Bohan,  recover  of  the  defendant,  The  Port  Jervis  Gas-light 
Company,  the  said  sum  of  $340  damages  together  with  the  sum  of 
$146.84  costs,  amounting  in  all  to  the  sum  of  $486.84,  and  that  the 
plaintiff  have  execution  therefor,  etc.     It  is  further 

Ordered,  adjudged  and  determined  by  the  said  court  that  the 
defendant  be  and  hereby  is  enjoined  and  restrained  from  so  operating 
and  maintaining  its  gas-works  at  Port  Jervis,  Orange  county,  N.  Y., 
as  to  emit  therefrom  noxious  and  offensive  odors  or  vapors  on  or  to 
the  premises  of  the  plaintiff  in  said  village  of  Port  Jervis. 

R.   P.   HOCK, 

Clerk. 

Judgment    for    Damages    and    to    Abate    Nuisance    with 

Injunction. 

SUPREME  COURT  — County  of  Delaware. 


ABIJAH   WAKEMAN 

agst. 

SYLVIA  WILBUR  and  JACOB  WILBUR. 


147  N.  Y.  664. 


This  action  having,  by  an  order  of  this  court,  been  duly  referred 
to  Arthur  More,  Esq.,  as  sole  referee  to  hear  and  determine  all  the 
issues  therein,  and  the  same  having  been  brought  on  to  trial  and 
tried  before  said  referee,  and  his  report  and  decision  therein  having 
been  filed  whereby  he  finds  that  the  locus  in  quo  is  and  at  the  time 
of  the  commencement  of  this  action  was  a  public  highway ;  that  the 
fence  erected  by  the  defendants  constituted  a  public  nuisance  and 


NUISANCE.  567 


Art.  7.     Injunction  in  Action  for  Nuisance. 


one  especially  injurious  to  the  plaintiff;  that  the  plaintiff  has  estab- 
lished such  an  interest  in  the  said  highway  and  such  damage  as  to 
entitle  him  to  maintain  this  action;  and  that  the  plaintiff  is  entitled 
to  judgment  that  the  said  fences  as  they  existed  at  the  time  of  the 
commencement  of  this  action  be  removed  and  that  the  defendants 
and  each  of  them  be  enjoined  from  again  obstructing  the  said  high- 
way or  interfering  with  the  plaintiff's  right  therein,  and  that  the 
plaintiff  recover  of  the  defendants  the  sum  of  $35  damages  sustained 
by  reason  of  said  nuisance  and  the  costs  of  this  action,  it  is  now,  on 
motion  of  Fancher  &  Sewall,  plaintiff's  attorneys. 

Adjudged  and  decreed  that  the  said  fences,  as  they  existed  at  the 
time  of  the  commencement  of  this  action,  be  removed  and  that  the 
defendants  and  each  of  them  be  perpetually  enjoined  from  again 
obstructing  the  said  highway  or  interfering  with  the  plaintiff's  rights 
therein,  and  that  the  plaintiff  recover  of  the  defendants  the  sum  of 
$35  damages  with  $213.51  costs  and  disbursements,  amounting  in 
the  whole  to  the  sum  of  $248.51. 

GEORGE  T.  WARNER, 

Dated  August  ist,  1887.  Clerk. 

ARTICLE    VII. 

Injunction  in  Action  for  Nuisance. 

The  cases  cited  are  principally  actions  in  equity  to  restrain  a 
nuisance,  and  as  heretofore  suggested,  such  an  action  is  preferable 
even  though  an  injunction  is  not  asked  paidcnte  lite.  These 
authorities,  hou^ever,  show  the  rule  applicable  botli  on  the  law 
and  equity  side  of  the  court  as  to  the  continuance  and  abatement 
of  a  nuisance.  In  an  action  for  nuisance,  if  the  injury  is  shown 
to  occur  so  often  as  to  necessitate  a  multiplicity  of  suits,  the 
court  may  award  an  injunction.  Dunsbach  v.  Hollistcr,  49  Hun, 
352;  S.  C.  17  St.  Rep.  461,  2  N.  Y.  Supp.  94.  The  injury 
apprehended  may  be  to  either  person  or  property.  It  is  sufifi- 
cient  that  it  is  offensive  and  renders  the  enjoyment  of  property 
uncomfortable.  Catlin  v.  Valentine.  9  Paige  Ch.  575.  Whenever 
a  private  individual  is  specially  injured  by  a  public  nuisance,  the 
court  will  restrain  the  nuLsance  on  his  complaint.  MilJiau  v. 
Sharp,  28  Barb.  228,  27  N.  Y.  611;  Davis  v.  Mayor,  14  N.  Y. 
506.  An  injunction  may  issue,  since  the  remedy  in  equity  is 
better  adapted  to  do  justice  than  a  mere  action  for  damages. 
Hallockv.  Scheyer,  33  Hun,  in.  Occupation  of  a  building  in  a 
city  as  a  slaughter  house  as  a  nuisance,  may  be  restrained  by 
injunction.  Metropolitan  Board  of  Health  v.  Heister,  37  N,  Y. 
661.     So  is  a  fat  melting-establishment.      Peck  v.  Elder,  3  Sandf. 


568  NUISANCE. 


Art.  7.      Injunction  in  Action  for  Nuisance. 


126.  Injunctions  have  been  granted  against  a  steam  mill.  Mc~ 
Keon  V.  See,  51  N.  Y.  300.  Against  a  factor}^  emitting  gas. 
Mulligan  v.  Elias,  12  Abb.  (N.  S.)  259.  Where  one  manufactured 
brick  on  his  own  land  and  used  a  process  in  burning  by  which 
noxious  gases  were  generated,  an  injunction  was  allowed,  and 
the  right  to  an  injunction  is  not  affected  by  the  fact  that  the  nui- 
sance existed  before  plaintiff  purchased  the  land.  Campbell  v, 
Seenian,  63  N.  Y.  568.  An  injunction  may  be  granted  at  the 
instance  of  an  abutting  owner  to  prevent  obstruction  of  the  high- 
way. Newman  v.  Nellis,  97  N.  Y.  285.  Also  against  blasting 
near  plaintiff's  premises  so  as  to  injure  the  premises,  even  though 
blasting  was  done  in  accordance  with  the  requirements  of  the  city 
ordinance.  Rogers  v.  Hanfield,  12  St.  Rep.  671.  An  injunction 
perpetually  restraining  defendants  from  standing  horses,  carriages 
and  hacks  in  front  of  plaintiff's  premises  for  the  purpose  of 
letting  them  for  hire,  was  granted.  McCaffcry  v.  Smith,  41 
Hun,  117. 

Defendants  were  restrained  from  arranging  the  awnings  and 
shutters  from  in  front  of  their  store  so  as  to  deprive  the  adjoining 
building  of  plaintiff  of  light  and  air.  Lavery  v.  Hamiigan,  52 
Supr.  Ct.  463.  It  is  sufficient  to  justify  continuance  of  an  in- 
junction against  the  threatened  erection  of  a  public  nuisance  that 
plaintiff  has  or  will  suffer  substantial  damage  that  is  special  to  him. 
Forty -secojid  St.  R.  R.  Co.  v.  Thirty-fourth  St.  R.  R.  Co.  52  Supr. 
Ct.  252.  It  is  proper  to  grant  an  injunction  to  restrain  a  defend- 
ant from  so  digging  on  his  own  land  as  to  injure  the  highway, 
or  as  to  cause  the  same  to  fall  down.  Milbur)i  v,  Fozvler,  27 
Hun,  568.  The  owner  of  wharves  upon  the  bank  of  a  navigable 
stream  may  have  an  injunction  to  prevent  defendants  from  emp- 
tying refuse  into  such  waters,  if  it  appears  that  the  deposit 
causes  an  interference  with  navigation  and  is  injurious  to  some 
right  of  plaintiffs.  Hudson  River  R.  R.  Co.  v.  Loch,  7  Rob.  418. 
See,  however,  Knickerbocker  Ice  Co.  v.  Schultz,  116  N.  Y  383. 

An  injunction  may  be  granted  to  restrain  one  from  obstructing 
a  street  by  building  a  house  therein,  which  produces  special  injury 
to  plaintiff,  by  affecting  the  enjoyment  and  value  of  their  adjoin- 
ing property.  Corning  v.  Lozvcrrc,  6  Johns.  Ch.  439.  In  case  of 
a  noxious  trade  which  constitutes  a  nuisance,  it  is  of  no  conse- 
quence whether  complainants  reside  on  their  property  or  not.  It 
is  sufficient  that  the  nuisance  is  calculated  to  diminish  the  value 


NUISANCE.  569 


Art.  7.     Injunction  in  Action  for  Nuisance. 


of  the  property.  Peck  v.  Elder,  3  Sandf.  129.  Injunction  is  the 
proper  remedy  for  a  continuous  nuisance.  McKeon  w  See,  5 1 
N.  Y.  300.  A  defendant  may  be  enjoined  from  depositing  foul 
sewage  from  a  sewer,  on  plaintiff's  premises.  Beech  v.  City  of 
Elmira,  22  Hun,  158.  One  maintaining  a  common  nuisance 
may  be  restrained  in  equity  from  continuing  it  by  one  suffering 
peculiar  damage.  Adams  v.  Pophavi,  76  N.  Y.  410.  The  fact 
that  a  building  in  the  course  of  construction  may,  when  com- 
pleted, be  used  in  a  manner  detrimental  to  the  rights  of  an 
adjoining  owner,  is  no  ground  for  granting  an  injunction, 
when  the  building  itself  is  not  a  nuisance.  Depierris  v.  Mattern, 
10  N.  Y.  Supp.  626. 

An  action  can  be  maintained  and  injunction  will  issue  to 
restrain  the  continuance  of  a  nuisance  after  resolution  of  board  of 
health  declaring  it  such,  and  notice  to  the  person  maintaining  it. 
Bell  V.  City  of  Rochester,  33  St.  Rep.  739.  The  owner  of  a  city 
lot  is  not  entitled  to  enjoin  the  erection  of  a  frame  building  on 
adjoining  property,  in  violation  of  the  fire  regulations  of  the  city; 
although  the  statute  makes  such  a  building  a  common  nuisance, 
the  plaintiff  is  not  entitled  to  abate  it  in  the  absence  of  an  alle- 
gation of  special  damages.  Young  v.  Slieu,  56  Hun,  307 ;  S.  C. 
30  St.  Rep.  608,  9  Supp.  349.  The  court  will  not  adjudge  the 
removal  of  a  valuable  building  because  it  obstructs  property  in 
which  the  plaintiff  has  a  technical  right  of  way,  where  complete 
indemnity  can  be  secured  to  him  by  damages.  Welsh  v.  Tay- 
lor,  50   Hun,  137;  S.   c.  19  St.  Rep.  735,  2  N.  Y.  Supp.  815. 

An  injunction  was  refused  a  telegraph  company  to  prevent  an 
abutting  owner  from  removing  its  poles,  though  the  lines  of  the 
company  were  erected  under  legislative  sanction.  Metropolitan 
Telegraph  Co.  v.  Colwell  Lead  Co.  50  N.  Y.  Supr.  488.  It  was 
also  refused  against  the  erection  of  a  wharf  on  a  navigable  river 
below  high  water  mark,  not  shown  to  so  materially  obstruct  the . 
navigation  as  to  be  a  nuisance.  Delazuare  &  Hndsofi  Canal  Co. 
V.  Lawrence,  2  Hun,  163.  Also  refused  against  a  floating  ele- 
vator which  was  not  an  obstruction  to  navigation.  People  v. 
Horto7i,  64  N.  Y.  610.  Also  denied  against  removal  of  storm 
door  extending  beyond  house  line.     Kiernan  v.  Newton,  20  Abb. 

N.  C.  398- 

A  mine  owner  cannot  be  restrained  from  blasting  in  the  night 
time,  on   the  ground   that   it   disturbs  the  sleep  and   affects  the 


570 


NUISANCE. 


Art.  7.      Injunction  in  Action  for  Nuisance. 


health  of  the  owner  of  the  surface  and  of  his  family  or  diminishes 
the  value  of  his  estate,  unless  it  is  shown  that  such  blasting  is 
unnecessary.     Marvin  v.  Brezvster  Iron  Mining  Co.  55  N.  Y.  538. 

An  injunction  should  not  be  granted  against  an  act  which  is 
not  of  itself  a  nuisance,  until  the  question  whether  it  is  such  has 
been  determined  upon  a  proper  issue.  Vejitier  v.  Jorda^i,  2 
Edms.  473.  So  held  with  reference  to  an  injunction  against  lay- 
ing water  pipes  in  a  village  highway  by  a  corporation.  Crooke 
V.  FlatbiisJi  Water  Works  Co.  27  Hun,  72. 

An  injunction  will  not  be  granted  to  restrain  an  erection  as  a 
nuisance  where  it  has  been  acquiesced  in  but  still  less  where  it  was 
encouraged  by  the  parties  seeking  relief.  Harrison  v.  Lee,  9 
N.  Y.  Leg.  Obs.  34.  Injunction  was  refused  against  the  com- 
missioner of  public  works  to  restrain  him  from  cutting  down 
telegraph  and  telephone  poles  on  ground  they  were  a  public  nui- 
sance.    American  Rapid  TelegrapJi   Co.  v.  Hess,  125   N.  Y.  641. 

No  precedents  are  given  for  injunctive  relief  other  than  the 
complaints  and  judgment,  supra,  since  that  relates  more  particu- 
larly to  equity  practice  and  is  usually  considered  under  the 
equitable  action  to  restrain  nuisance. 


CHAPTER  VIII. 

ACTION  BY  REVERSIONERS  AND  JOINT  TENANTS. 

PAGE. 

Article  i.   Action  against  guardians  or  trustees  holding  over. 

Sec.  1664 571 

2.  Action  by  reversioner.     Sec.  1665 571 

3.  Where  joint  tenants  may  maintain  action    against 

each  other.      Sec.  1666 573 

Sections  of  the  Code  of  Procedure  and  Where  Found  in  this 

Chapter: 

SEC.  ART.     PAGE. 

1664.  Certain  persons  holding  over  deemed  trespassers.  Action  against 

them I       571 

1665.  Reversioner,  etc.,  may  maintain  action 2       571 

1666.  Joint  tenant,  etc.,  may  maintain  action  against  his  co-tenant.. .        3       573 

ARTICLE    I. 

Action  Against  Guardians  or  Trustees  Holding  Over. 

§  1664. 

§  1664.  Certain  persons  holding  over  deemed  trespassers.  Action  against 
them. 

A  person  in  possession  of  real  property,  as  guardian  or  trustee  for  an  infant, 
or  having  an  estate  determinable  upon  one  or  more  lives,  who  holds  over  and 
continues  in  possession,  after  the  determination  of  his  trust  or  particular  estate, 
without  the  express  consent  of  the  person  then  immediately  entitled,  is  a  tres- 
passer, An  action  may  be  maintained  against  him,  or  his  executor  or  adminis. 
trator.  by  the  person  so  entitled,  or  his  executor  or  administrator,  to  recover  the 
full  value  of  the  profits,  received  during  the  wrongful  occupation. 

Section  1664  is  the  provision  of  §  7(1  Edm.  700)  condensed, 
but  not  materially  changed.  The  statute  is  said  in  Livingston  v. 
Tanner,  14  N.  Y.  64,  to  have  changed  the  character  of  the  person 
holding  over  from  that  of  a  tenant  at  sufferance  to  that  of  a  tres- 
passer, and  that,  therefore,  no  notice  was  necessary  before  bring- 
ing an  action  of  ejectment. 

ARTICLE    II. 
Action  pa-  Reversioner.     §  1665. 

§  1665.  Reversioner,  etc.,  may  maintain  action. 

A  person,  seized  of  an  estate  in  remainder  or  reversion,  may  maintain  an 
action  founded  upon  an  injury  done  to  the  inheritance,  notwithstanding  any 
intervening  estate  for  life  or  for  years. 

t57il 


572  ACTION  BY  REVERSIONERS  AND  JOINT  TENANTS. 


Art.  2.     Action  by  Reversioner. 


Persons  to  whom  lands  have  been  devised  in  trust,  may  main- 
tain an  action  for  trespass  causing  an  injury  to  the  inheritance  not- 
withstanding the  premises  are  in  the  possession  of  the  tenant 
under  a  lease.  Mortimer  v.  Manhattan  R.  R.  Co.  29  St.  Rep. 
262 ;  Macy  v.  Metropolitan  Elevated  R.  Co.  1 2  Supp.  804 ;  Doyle 
V.  Manhattan  Ry.  Co.  12  Supp.  548.  An  action  for  injunction 
and  damages  against  an  elevated  railroad  company  may  be  main- 
tained by  abutting  owners  although  they  do  not  own  the  fee  of 
the  street,  or  by  remaindermen.  Thompson  v.  Manhattan  R.  R. 
Co.  29  St.  Rep.  720. 

Under  §  1665  a  reversioner  is  entitled  to  an  injunction  to  pre- 
vent an  injury  to  the  inheritance  notwithstanding  the  existence 
in  full  force  of  a  lease  of  the  premises  granted  by  him.  Macy  v. 
Metropolitan  Elevated  Ry.  Co.  59  Hun,  365,  36  St.  Rep.  245, 
affirmed,  on  opinion  in  Galway  v.  Metropolitan  Elevated  Ry.  Co. 
128  N.  Y.  624.  While,  perhaps,  at  common  law,  the  owner  of 
the  reversion  would  not  be  entitled  to  maintain  an  action  for 
damages,  §  1665  expressly  provides  for  an  action  for  injury  to 
the  inheritance  notwithstanding  any  intervening  estate  for  life  or 
for  years.  Korn  v.  New  York  Elevated  Ry.  Co.  39  St.  Rep.  322. 
An  elevated  railroad  erected  in  a  city  street,  the   right  to  con-  _J-. 

struct  and  operate  which  has  not  been  obtained  by  purchase  from 
the  abutting  owners  or  by  proceedings  to  condemn,  is  as  to 
them  an   illegal  structure  and  a  continuing  trespass  upon  their  tf, 

rights.      It  is  an  injury  to  the  inheritance,  and  a  person  seized  of  ^ 

an  estate  in  remainder  in  premises  abutting  upon  the  street  may 
maintain  an  action.  Thompson  v.  Manhattan  Ry.  Co.  130  N.  Y. 
360.  The  construction  and  operation  of  a  railway  in  a  street  in  front 
of  plaintiff's  property  being  a  continuous  nuisance,  the  owner  of 
the  reversion  of  the  premises  may  recover  damages  accruing 
within  the  period  of  limitation  of  six  years  though  the  railway 
was  constructed  and  operated  before  that  period.  Doyle  v. 
Manhattan  R.  R.  Co.  12  Supp.  548.  16  Daly,  506.  Under  §  1665 
the  remainderman  may  recover  though  it  appears  that  the  injuries 
complained  of  occurred  during  the  demise  of  the  premises  injured. 
Ottingcr  v.  New  York  Elevated  R.  R.  Co.  15  Supp.  18. 


ACTION  BY  REVERSIONERS  AND  JOINT  TENANTS.  573 


Art.  3.     When  Joint  Tenants  may  Maintain  Action  Against  Each  Other. 

ARTICLE    III. 

When    Joint   Tenants   May    Maintain  Action   Against 

Each  Other.    §  1666. 

§  1666.  Joint  tenant,  etc.,  may  maintain  action  against  his  co-tenant. 

A  joint  tenant  or  a  tenant  in  common  of  real  property,  or  his  executor  or 
administrator,  may  maintain  an  action  to  recover  his  just  proportion  against  his 
co-tenant,  who  has  received  more  than  his  own  just  proportion,  or  against  his 
executor  or  administrator. 

The  codifier's  note  to  this  section  states  that  it  is  proposed  as 
a  substitute  for  §9(1  Edm.  700),  which  is  as  follows: 

"One  joint  tenant  or  tenant  in  common  and  his  executors  or 
administrators  may  maintain  an  action  of  account  or  for  money 
had  and  received  against  his  co-tenant  for  receiving  more  than  his 
just  proportion ;  and  the  like  action  may  be  maintained  by  them 
against  the  executors  or  administrators  of  such  co-tenant." 

"The  abolition  of  distinct  forms  of  action  rendered  the  recon- 
struction of  this  section  unavoidable.  In  so  doing  it  was  neces- 
sary to  avoid  disturbing  the  ruling  in  Woolvcr  v.  Knapp,  18 
Barb.  265,  and  Wilcox  v.  Wilcox,  48  Barb.  327,  to  the  effect  that 
in  the  absence  of  any  agreement  or  any  demand  to  be  allowed  to 
enjoy  the  premises,  one  tenant  in  common  could  not  recover 
against  another  for  use  and  occupation.  A  provision  that  each 
should  account  to  the  other  for  more  than  his  share  of  the  'pro- 
ceeds' of  the  land,  would,  at  least,  raise  the  question  whether  the 
ruling  was  not  abrogated  by  the  statute." 

"It  is  impossible,  however,  to  confine  the  right  of  action  to  the 
plaintiff's  share  of  rents  and  profits  received,  for  the  co-tenant  may 
have  received  moneys  from  various  other  sources,  e.  g. ,  damages 
for  a  trespass  or  compensation  for  land  taken  for  public  use. 
Brinckcrhoff  v.  Wanplc,  i  Wend.  470.  This  section,  therefore, 
purposely  refrains  from  defining  the  subject  of  the  'ju.st  propor- 
tion,' leaving  the  courts  to  expound  it  in  accordance  with  settled 
rules  of  law." — Note  by  Codificrs. 

In  an  action  by  one  tenant  in  common  against  his  co-tenant  for 
an  account,  the  plaintiff  can  only  recover  a  proportion  of  the 
rents  received  by  the  defendant,  not  an  occupation  rent  for  the 
portion  of  the  premi.ses  occupied  by  the  latter.  Josl)m  v.  Joslyn, 
9  Hun,  388.  A  tenant  in  common  in  possession  under  a  claim 
of  exclusive  title,  hchU  not  liable  for  rents  and  profits  and  use, 
until  required  by  his  co-tenants  to  yield  to  and   recognize  their 


574  ACTION  BY  REVERSIONERS  AND  JOINT  TENANTS. 

Art.  3.     When  Joint  Tenants  may  Maintain  Action  Against  Each  Other. 

rights.  Vandcrzec  v.  Slitigerland,  19  Week.  Dig.  107.  One 
tenant  in  common  cannot  recover  from  his  co-tenant  their  joint 
muniments  of  title.  Clozvcs  v.  Hazvley,  12  Johns.  484.  A  ten- 
ant in  common  who  takes  a  lease  of  the  moiety  of  his  co-tenant 
and  continues  in  possession  after  the  expiration  of  the  term  is  not 
liable  to  an  action  for  use  and  occupation  as  a  tenant  holding 
over.  McKay  v.  Mumford,  10  Wend.  351.  A  tenant  in  com- 
mon who  denies  and  contests  his  co-tenant's  right  is,  if  unsuc- 
cessful, bound  to  account  for  rents  and  profits  for  at  least  six 
years.  Taggart  v.  Hurlburt,  66  Barb.  553.  See  for  same  principle 
2iS\n  Joslynv.  yoslyn,  9  Hun,  2)^?>,  supra,  Roscboom  v.  Roseboovi,  15 
Hun,  309;  Dresser  v.  Dresser,  ^o  Barb.  300 ;  Zapp  v.  Miller,  23 
Week.  Dig.  378;  Ford  v.  Knapp,  102  N.  Y.  138.  Such  tenant  in 
common  in  possession  must,  however,  pay  rent,  taxes,  and  ordinary 
repairs.  McAlcar  v.  Delaney,  19  Week.  Dig.  252.  See  cases 
cited  under  Partition,  p.  274.  The  cases  on  this  subject  are  col- 
lated and  considered  in  Muldowny  v.  Morris  &  Essex  R.  R.  Co. 
42  Hun,  444;  following  MeCabe  w.  MeCabe,  18  Hun,  153.  The 
court  distinguishes  that  case  from  those  cited,  except  Ford  v. 
Knapp,  on  the  grounds:  ist.  The  joint  or  common  premises  in 
those  cases  were  farming  lands  and  open  to  the  occupation  and 
free  to  the  enjoyment  of  all  owners.  2d.  The  owners  in  each 
case  were  seized  of  an  estate  of  co-ordinate  rank.  3d.  In  all  the 
cases  there  was  failure  of  proof  of  demand  on  the  part  of  the  com- 
plaining tenant  to  be  allowed  to  enjoy  the  premises. 

It  is  said  in  Kingsland  v.  Chetwood,  39  Hun,  602,  that  where 
one  tenant  in  common  collects  and  appropriates  rents  belonging 
to  his  co-tenant,  the  latter  has  a  lien  upon  the  interest  or  share  of 
the  person  so  appropriating  it,  for  reimbursement,  but  in  Bowen 
V,  Ka2ighran,  i  St.  Rep.  121,  it  is  held  that  one  tenant  in  com- 
mon, who  advances  money  with  the  knowledge  of  his  co-tenant, 
to  improve  the  common  property,  does  not,  ipso  facto,  acquire  an 
equitable  lien  on  the  co-tenant's  share  for  the  moneys  so 
advanced ;  and  an  agreement  that  such  moneys  shall  be  repaid 
out  of  the  proceeds  of  the  land  does  not  create  an  equitable  lien 
as  against  her  grantee  in  good  faith.  In  an  action  by  a  tenant 
in  common  against  his  co-tenant  to  recover  his  share  of  the  rents, 
which  the  co-tenant  has  collected  under  an  arrangement  to 
divide,  defendant  cannot  counterclaim  the  expenses  of  improve- 
ments made  without  the  assent  of  plaintiff.      Coakley    v.  Maker, 


ACTION  BY  REVERSIONERS  AND  JOINT  TENANTS.  575 

Art.  3.     When  Joint  Tenants  may  Maintain  Action  Against  Each  Other, 


36  Hun,  157.  See  cases  cited  as  to  rights  of  co-tenants.  Where 
one  of  severaftenants  of  real  property  acts  as  agent  for  all  upon 
a  contract,  express  or  implied,  that  he  will  collect  the  rents,  pay 
the  taxes,  etc.,  and  pay  over  to  his  co-tenants  their  shares  of  the 
net  income,  an  action  may  be  maintained  by  them  jointly,  as 
upon  a  money  demand  arising  on  contract.  Tiiers  v.  Tuers,  16 
Abb.  N.  C.  464. 

Where  plaintiff  and  defendant  were  tenants  in  common  of  prop- 
erty, the  plaintiff  having  been  induced  to  leave  the  premises,  by 
the  fraud  or  undue  influence  of  the  latter,  it  was  an  ouster,  and 
that  plaintiff  could  maintain  an  action  of  ejectment,  and  an  action 
to  recover  mesne  profits,  so  held  in  an  action  to  set  aside  trans- 
fers of  a  moiety  of  certain  real  estate  on  the  ground  of  undue 
influence  and  fraud.  It  was  also  held  in  that  case  that  the 
defendant  having  paid  taxes  on  the  property  during  the  lifetime 
of  the  tenant  for  life,  he  could  not  charge  the  amount  so  advanced 
to  the  plaintiff.     Zapp  v.  Miller,  109  N.  Y.  51. 

Where  a  deed  to  two  or  more  grantees  is  so  delivered  and 
accepted  as  to  be  operative  as  a  grant  to  all,  one  of  them  having 
the  deed  in  possession  has  no  right  to  refuse  to  permit  it  to  be 
recorded,  and  in  case  of  such  refusal,  an  action  is  maintainable 
against  him  on  behalf  cf  another  of  the  grantees  to  compel  a 
delivery  of  the  deed  to  the  proper  officer  for  record.  SmitJi  v. 
Cole,  109  N.  Y.  436. 

One  tenant  in  common  who  receives  no  money  or  property 
from  the  premises  owned  in  common  by  himself  and  others,  but 
simply  occupies  them  himself,  is  not  liable  to  his  co-tenants  for 
the  value  of  the  use  of  the  property  so  occupied  by  him.  Section 
1589  of  the  Code,  providing  for  the  adjustment  of  the  rights  of 
the  parties  in  partition,  does  not  create  any  greater  liability  as 
against  a  party  in  possession  to  account  for  rents  and  profits 
while  he  may  be  only  in  their  actual  occupancy,  than  existed  prior 
thereto.  Rich  v.  Rich,  50  Hun,  199.  It  is  said  in  the  opinion 
by  Daniels,  J.,  in  this  case,  that  Scott  v.  Guernsey,  48  N.  Y.  106, 
was  decided  in  1871,  and  while  the  same  subject  has  frequently 
been  before  the  court  since  that  time  it  has  not  been  recognized 
as  a  controlling  authority  or  one  which  should  be  followed  ;  citing 
40  Barb.  300;  18  Barb.  265;  48  Barb.  327;  9  Hun,  388;  15  Hun, 
309;   18  Hun.  153;  46  Hun,  598. 

The  latter  case,  Le  Barren  v.  Babcock,  46  Hun,  598,  holds  that 


5/6  ACTION  BY  REVERSIONERS  AND  JOINT  TENANTS. 

Art.  3.     When  Joint  Tenants  may  Maintain  Action  Against  Each  Other. 

where  plaintiff  cultivated  a  piece  of  land  of  which  he  was  one  of 
the  tenants  in  common  and  sowed  it  with  oats  which  he  cut,  and 
while  they  were  lying  on  the  ground  the  person  acting  under  one 
of  his  co-tenants  gathered  them  and  drew  them  away,  that  plain- 
tiff was  lawfully  in  possession  and  had  the  right  to  cultivate  the 
ground  and  sow  and  harvest  the  oats,  and  as  they  were  the  pro- 
duct of  his  labor,  he  was  entitled  to  maintain  an  action  for  their 
conversion ;  but  that  as  to  hay  cut  by  the  plaintiff  and  then  gath- 
ered and  carried  away  by  the  defendant,  it  was  held  that  as  grow- 
ing grass  is  and  should  be  part  of  the  realty  until  severed  and 
unlike  farm  crops  is  in  some  sense  a  self-supporting  production, 
the  hay  was  not  the  product  of  the  labor  of  plaintiff,  and  he 
acquired  no  additional  right  thereto  by  severing  it  from  the  land. 

The  rule  that  the  mere  occupation  of  land  by  one  tenant  in 
common  does  not  make  him  liable  to  his  co-tenants  for  the  rents 
and  profits,  is,  however,  subject  to  the  qualification  that  the 
tenants  in  possession  shall  not  be  holding  adversely  to  those  mak- 
ing the  claim.  So  held  in  Stephenson  v.  Cotter,  23  St.  Rep,  74, 
which  also  holds  that  where  a  person  under  the  impression  that 
she  was  the  sole  owner  of  the  premises,  built  a  house  thereon 
without  reference  to  the  other  owners,  that  she  was  not  entitled 
to  the  sum  laid  out  by  her  as  for  permanent  improvements.  As 
to  the  first  proposition,  109  N.  Y.  57,  snpra,  is  cited  as  authority. 

Where  the  interests  of  tenants  in  common  are  distinct  and 
readily  ascertainable  on  an  accounting  showing  the  profits,  either 
tenant  may  demand  of  his  co-tenant  having  possession  of  the 
whole,  his  share,  and  on  refusal  or  conversion  may  sue  in  his 
own  name  without  joining  all  the  other  co-tenants.  Kutz  v. 
Richards^  40  St.  Rep.  693. 

In  the  absence  of  the  actual  ouster  by  the  tenant  in  possession 
or  the  total  denial  on  his  part  of  the  right  of  his  own  co-tenants, 
the  latter  is  not  entitled  to  recover  in  ejectment.  It  seems  that 
a  denial  of  plaintiff's  title  would  be  sufficient  to  raise  the  question. 
Gibnan  v.  Gilinan,  iii  N.  Y.  265. 

The  jurisdiction  of  the  Supreme  Court  to  entertain  an  action 
for  an  accounting  between  co-tenants  in  equity,  is  concurrent 
with  its  jurisdiction  to  entertain  an  action  at  law  to  recover  the 
amount  alleged  to  be  due  from  one  co-tenant  to  another,  and 
where  such  concurrent  jurisdiction  exists,  the  .six  years  statute  of 
limitations  applies.   St.  JoJiu  v.  Coates,  45  St.  Rep.  431.  63  Hun,  460. 


CHAPTER  IX. 

ACTION   FOR  CUTTING  TREES   OR   TIMBER  AND  WHEN 
TREBLE    DAMAGES  ALLOWED. 

Sections  of    the    Code    of    Procedure    and  Where    Found    in 

THIS  Chapter: 
Sec.  art.  page. 

1667.  Action  for  cutting,  etc. ,  trees r       577 

1668.  Id. ;  when  treble  damages  may  be  recovered i       577 

1669.  Treble  damages  for  forcible  entry  or  detainer i       577 

§  1667.  Action  for  cutting,  etc.,  trees. 

If  any  person  cuts  down  and  carries  off  any  wood,  underwood,  tree,  or  tim- 
ber, or  girdles  or  otherwise  despoils  a  tree  on  the  land  of  another,  without  the 
owner's  leave;  or  on  the  common,  or  other  land,  of  a  city,  village,  or  town, 
without  having  right  or  privilege  in  those  lands,  or  license  from  the  proper 
officer;  an  action  may  be  maintained  against  him,  by  the  owner,  or  the  city, 
village,  or  town,  as  the  case  may  be. 

§  1668.  Id.;  when  treble  damages  may  be  recovered. 

In  an  action  brought  as  prescribed  in  the  last  section,  the  plaintiff  may  state 
in  his  complaint  the  amount  of  his  damages,  and  demand  judgment  for  treble 
the  sum  so  stated.  Thereupon,  if  the  inquisition,  or  where  issues  of  fact  are 
tried,  the  verdict,  report  or  decision,  awards  him  any  damages,  he  is  entitled  to 
judgment  for  treble  the  sum  so  awarded,  except  that  in  either  of  the  following 
cases,  judgment  must  be  rendered  for  single  damages  only: 

1.  Where  the  verdict,  report,  or  decision  finds  affirmatively  that  the  injury, 
for  which  the  action  was  brought,  was  casual  and  involuntary;  or  that  the 
defendant,  when  he  committed  the  injury,  had  probable  cause  to  believe  that 
the  land  was  his  own. 

2.  Where  the  defendant  has  pleaded,  and  the  verdict,  report,  or  decision  finds 
affirmatively,  that  the  injury,  for  which  the  action  was  brought,  was  committed 
by  taking  timber,  for  the  purpose  of  making  or  repairing  a  public  road,  or  a 
public  bridge,  or  by  taking  any  wocd,  underwood,  or  tree,  for  a  like  purpose, 
by  authority  of  a  commissioner  or  overseer  of  highways. 

§  1669.  Treble  damages  for  forcible  entry  or  detainer. 

If  a  person  is  disseized,  ejected,  or  put  out  of  real  property,  in  a  forcible  man- 
ner; or  after  he  has  been  put  out,  is  held  and  kept  out,  by  force,  or  by  putting 
him  in  fear  of  personal  violence,  he  is  entitled  to  recover  treble  damages,  in  an 
action  therefor  against  the  wrong-doer. 


For  rule  as  to  when  treble  damages  are  allowed  in  an  action  for 
waste,  see  §  1656,  Art.  11,  of  Chap.  VL 

Sections  1667  and  1668  are  codified  from  the  Revised  Statutes, 
and  so  amended,  as  is  said  by  the  codifiers,  as  to  be  in  accordance 
with  the  true  construction  of  the  statute.  The  provisions  of  2 
[Special  Actions  —  37.]  [577] 


578  ACTION   FOR   CUTTING   TREES   OR   TIMBER, 

When  Treble  Damages  Allowed. 

R.  S.  338,  §  I,  from  which  §  1667  is  taken,  were  not  intended 
exclusively  for  the  benefit  of  persons  having  a  present  estate  in 
possession.  Remaindermen  in  fee  may  maintain  an  action  for  an 
injury  to  the  inheritance  by  cutting  timber,  and  the  fact  that 
there  is  a  subsisting  estate  for  life  in  another  person  is  not  an 
insuperable  obstacle  to  such  an  action.  Joint  owners  of  lands, 
deriving  their  title  from  a  common  ancestor,  together  represent 
the  estate  which  their  ancestor  had  in  his  lifetime,  and  for  an 
injury  to  their  common  property,  where  the  injury  is  common  to 
all,  they  may  maintain  a  joint  action.  Van  Deiisen  v.  Young,  29 
Barb.  9.  In  such  an  action  it  is  not  necessary  for  the  intervening 
owner  of  an  estate  for  life,  or  for  years,  to  unite  as  a  party  plain- 
tiff. When  remainderman  in  fee  cannot  recover  for  any  injury 
the  life  tenant  may  have  received  by  the  acts  of  defendant,  he 
must  maintain  a  separate  action.  The  injury  in  an  action  by  a 
remainderman  should  be  confined  strictly  within  the  statute  giv- 
ing treble  damages  to  the  damage  done  to  the  inheritance  solely. 
Van  Deusen  v.  Young,  29  N.  Y.  i.  In  an  action  for  cutting  and 
removing  standing  timber  the  measure  of  the  damages  is  the 
value  of  the  standing  timber  at  the  place  where  it  stood  when  the 
trespass  was  committed,  unless  the  action  is  brought  and  a 
recovery  had  under  the  statute  where  the  damages  are  trebled. 
Stanton  v.  Pritchard,  4  Hun,  266;  citing  Whitbeck  v.  N.  Y.  C. 
R.  R.  Co.   36  Barb.  644. 

When  trees  standing  on  the  boundary  line  are  destroyed  by 
one  of  the  adjoining  proprietors,  trespass  lies  by  the  other 
whether  his  interest  be  several  or  as  tenant  in  common.  Nixon 
V.  Stillwell,  23  St.  Rep.  474,  following  Dubois  v.  Beaver,  25 
N.  Y.  123. 

Plaintiff  was  engaged  upon  unimproved  and  unoccupied  wood 
lots  in  removing  timber  therefrom ;  had  cut  a  portion  into  logs 
and  drawn  off  a  part.  Defendant  ordered  him  to  stop  the  removal 
and  took  possession  of  the  logs  and  converted  them.  No  proof 
of  title  being  given  by  either  party,  it  was  held  that  plaintiff  estab- 
lished a  sufficient  possession  of  the  logs  to  enable  him  to  maintain 
the  action.      Lyon  v.  Sellexv,  34  Hun,  .124. 

The  plaintiff  is  entitled  to  an  execution  against  the  defendants 
personally  in  an  action  brought  under  §§  1667  and  1668,  although 
judgment  enjoins  the  defendant  from  the  continuance  of  the  wrong- 
ful act.      The  demand  for  an   injunction   does    not   change  the 


ACTION   FOR   CUTTING   TREES   OR   TIMBER.  579 


When  Treble  Damages  Allowed. 


character  of  the  action,  which  is  still  one  for  trespass.     People,  ex 
rcl.  Gates,  v.  Fargo,  4  App.  Div.  544. 

It  is  said  in  Firmin  v.  Firviin,  9  Hun,  571,  distinguishing  4 
Hun,  266,  supra,  that  in  trespass  for  cutting  and  carrying  away 
logs,  the  plaintiff  may  recover  their  value  as  they  lay  upon  the 
land  ;  he  is  not  restricted  to  the  value  of  the  trees  as  they  stood. 
For  trespass  in  cutting  and  removing  timber  from  a  farm,  evi- 
dence is  proper  as  to  the  value  of  the  farm,  with  the  timber,  and 
its  value  after  the  timber  is  cut,  and  this  difference  is  the  proper 
measure  of  damages.  Argotsingcrv.  Vines,  "^2  N.  Y.  308.  Where 
an  executrix  has  possession,  and  is  entitled  as  such  to  the  rents, 
issues  and  profits  of  the  realty  until  sold,  she  may  maintain  the 
action  for  trespass  under  these  sections.  Ogsbiiry  v.  Ogsbury.  45 
Hun,  388.  Where  an  action  to  recover  damages  for  an  alles-ed 
unlawful  taking  of  timber,  cut  from  land  of  which  the  plaintiff 
has  not  the  actual  possession,  is  based  entirely  upon  a  construc- 
tive possession,  arising  out  of  his  claim  of  title  to  the  land,  de- 
fendant may  contest  the  validity  of  such  title.  People  v.  Haga- 
dor)i,  104  N.  Y.  516.  Where  a  complaint  in  an  action  of  trespass 
alleges  an  injury  to  the  inheritance,  a  denial  of  the  allegation  of 
the  complaint,  by  the  defendant,  in  his  answer,  raises  a  question 
as  to  title  of  real  property,  even  though  the  plaintiff,  in  his  com- 
plaint, has  alleged  possession  of,  as  well  as  title  to  the  land. 
Claim  for  treble  damages  can  only  be  made  by  the  owner  of  the 
land,  and  if  the  owner  demands  such  damages,  he  is  within  the 
section.  Crowcllv.  Smith,  35  Hun,  182.  But  though  the  com- 
plaint be  framed  under  the  statute  giving  treble  damages,  yet 
the  plaintiff  may  recover  single  damages  on  proof  of  a  common 
law  trespass.  Dubois  v.  Beaver,  25  N.  Y.  123;  Starkzveather  v. 
Qiiigley,  7  Hun,  26.  The  provision  as  to  the  manner  of  assessing 
treble  damages  under  the  Code  is  as  follows: 

g  11S4.  Where  double,  treble,  or  other  increased  damages,  are  given  by 
statute,  single  damages  only  are  to  be  found  by  the  jury;  except  in  a  case  where 
the  statute  prescribes  a  different  rule.  The  sum  so  found  must  be  increased  by 
the  court,  and  judgment  rendered  accordingly. 

This  is  in  accordance  with  the  rule  in  Neivcoinb  v.  Butterfield, 
8  Johns.  342;  King  v.  Havens,  25  Wend.  420 ;  Livingston  v. 
Plainer,  i  Cow.  175.  Where  the  boundary  line  divides  the  trunk 
of  a  tree  it  belongs,  it  seems,  to  the  adjoining  proprietors  as  ten- 
ants in  common ;  where  such  a  tree  is  destroyed  by  one  of  the 


58o  ACTION    FOR   CUTTING   TREES   OR   TIMBER, 


When  Treble  Damages  Allowed. 


adjoining    proprietors,    trespass   lies    by    the    other.       Dubois   v. 
Beaver,  25  N.  Y.  123. 

An  action  of  trespass  under  the  statute,  to  recover  treble  dam- 
ages for  the  forcible  disseizin  from  lands,  cannot  be  sustained 
unless  there  be  something  beyond  a  mere  trespass  —  the  entry  or 
detainer  must  be  notorious,  or  personal  violence  must  be  used,  or 
there  must  be  threats,  or  menaces  of  violence,  or  other  circum- 
stances exist  inducing  alarm,  or  terror  in  the  occupant  of  the 
premises.  The  mere  breaking  the  lock  of  an  out-house,  or  even, 
it  seems,  of  a  dwelling-house,  is  not  per  se  sufficient  to  maintain 
the  action.  Willard  v.  Warren,  17  Wend,  257.  The  owner  of 
land  wrongfully  held  out  of  possession  may,  if  he  can  regain  pos- 
session peacefully,  maintain  it,  and  may  lawfully  resist  an  attempt, 
by  the  former  occupant,  to  retake  it ;  there  can  be  no  wrongful 
entry,  by  the  true  owner,  where  the  entry  was  both  lawful  and 
peaceable.  Bliss  v.  Johnson,  Ji  N.  Y.  529,  See,  also,  as  to 
what  constitutes  a  forcible  entry  and  detainer,  §  2233  of  Code, 
and  cases  cited;  Fiero  on  Special  Proceedings,  1st  ed,,  295,  etc. 

Recovery  for  waste  is  limited  to  the  amount  of  damages  to  the 
freehold.  MeCay  \.  Wait,  51  Barb.  225;  Harder  v.  Harder,  26 
Barb.  409;  Robinson  v.Kinie,  i  T.  &  C.  60;  l^an  Deusen  v,  Yonng, 
29  N.  Y.  9.  It  is  not  necessary  for  the  complaint  in  an  action  of 
waste  to  contain  a  reference  to  the  statute  relating  to  treble  dam- 
ages to  entitle  the  plaintiff  to  such  damages.  Carrier  v,  Ingalls, 
12  Wend.  70;  Robinson  v,  Kime,  i  T.  &  C.  60.  The  statute  in 
regard  to  waste  will  not  excuse  a  defendant  from  treble  damages 
because  he  had  good  reason  to  believe  the  land  to  be  his  own. 
Robinson  v.  Kime,  70  N.  Y.  147;  Rutherford  w.  Aiken,  3  T.  &  C. 
60.  If  in  such  an  action  the  plaintiff  fails  to  prove  that  the 
injury  to  his  estate  is  equal  to  the  value  of  the  defendant's  estate, 
he  cannot  have  a  judgment  to  recover  the  place  wasted  and  treble 
damages.  An  allegation  to  that  effect  in  the  complaint  will  not 
be  admitted  by  the  default  of  the  defendant.  Harder  v.  Harder, 
26  Barb.  409.  When  the  complaint  contained  a  claim  for  treble 
damages  and  also  another  cause  of  action,  held,  plaintiff  was  not 
entitled  to  treble  damages.  Van  Deusen  v.  Yotmg,  29  N.  Y.  9. 
The  right  to  treble  damages  was  not  affected  by  the  old  Code. 
Robinson  v.  Kime,  70  N.  Y.  147. 

In  an  action  to  recover  treble  damages  under  §  1669  for  dis- 
seizin, or  ejection  of  a  person  in  a  forcible  manner  from  real  prop- 


ACTION   FOR   CUTTING   TREES   OR   TIMBER.  581 

When  Treble  Damages  Allowed. 

erty,  there  can  only  be  a  recovery  for  damages  happening  at  and 
after  the  time  of  the  disseizin,  and  whatever  is  recovered  must  be 
for  the  consequences  of  the  force  used.  Labro  v.  Campbell,  17  St. 
Rep.  749.  56  Supp.  70. 

A  complaint  alleging  that  defendant  unlawfully  and  willfully 
entered  upon  plaintiff's  land  and  unlawfully  and  willfully  cut 
down  trees  thereon  to  plaintiff's  damage,  states  facts  sufficient  to 
constitute  a  cause  of  action ;  as  if  treble  damages  were  improperly 
claimed  plaintiff  would  be  entitled  to  single  damages  if  the  facts 
proven  showed  it.      Von  Hoffman  v.  Kendall,  44  St.  Rep,  484. 

In  an  action  for  trespass  for  cutting  shade  trees  in  front  of 
plaintiff's  premises,  the  plaintiff  recovered  as  damages  the  differ- 
ence in  value  of  the  land  before  and  after  cutting  down  trees,  and 
on  application  for  treble  damages  under  §§  1667  and  1668,  it  was 
held  plaintiff  was  entitled  to  treble  damages,  and  that  such  dam- 
ages were  to  be  estimated  upon  the  whole  amount  of  the  plain- 
tiff's recovery,  and  not  simply  upon  the  value  of  the  wood  cut 
down  and  carried  away.  The  jury  were  told  that  on  the  question 
of  damages  they  were  confined  to  the  difference  in  the  value  of 
the  land  before  and  after  the  cutting  down  of  the  trees,  and  it 
was  held  that  evidence  to  show  the  value  of  the  wood  which 
was  taken  away  after  it  was  cut  did  no  harm  to  the  defendant. 
McCrudcn  v.  Roc  Just  cr  Ry.  Co.  5  Misc.  59. 

In  Nixon  v.  Stilhvcll,  23  St.  Rep.  474,  it  was  held  that  in  an 
action  for  cutting  down  and  carrying  off  certain  trees  that  "the 
value  of  the  trees,  merely  for  wood,  is  not  the  proper  measure  of 
damages,  but  the  jury  must  take  into  consideration  the  location 
and  the  use  to  which  they  were  put  and  the  value  to  the  land  on 
which  they  stood."  It  was  further  held  that  the  damages  which 
were  trebled  were  excessive  upon  the  facts  of  the  case.  52  Hun, 
353;  s.  c.  5  Supp.  248. 

In  an  action  to  recover  damages  for  trespass  in  cutting  and 
removing  trees  growing  upon  plaintiff's  land  without  his  consent, 
the  measure  of  damages  is  the  difference  between  the  value  of  the 
land  before  the  timber  was  cut  and  its  value  after  the  cutting  and 
destruction  of  the  timber  complained  of.  In  such  an  action  treble 
damages  are  a  legal  consequence  of  the  finding  of  damages  by  a 
jury  where  treble  damages  are  demanded  by  the  complaint,  and 
where  there  is  no  affirmative  finding  by  the  jury  that  the  injury 
for  which  the  action  was  brought  was  involuntary  or  that  the  de- 


582  ACTION    FOR   CUTTING   TREES   OR   TIMBER. 

When  Treble  Damages  Allowed. 

fendant  when  he  committed  the  injury  had  probable  cause  to  be- 
Heve  the  lands  in  question  were  his  own.  Htivics  v.  Proctor, 
73  Hun,  265. 

In  an  action  to  recover  real  property  or  the  possession  thereof 
plaintiff  may  demand  in  his  complaint,  and  in  a  proper  case,  to 
recover  damages  for  withholding  the  property,  and  under  §  1669, 
if  the  plaintiff  was  disseized  and  kept  out  of  the  possession  by 
force,  he  may  have  treble  damages  in  an  action  therefor  against 
the  wrongdoer.  Where  the  plaintiff  has  title,  ejectment  will  lie 
for  a  forcible  entry  and  detainer,  and  in  such  a  case  treble  dam- 
ages may  be  demanded  and  recovered  if  he  establishes  that  the 
disseizin  was  actually  effected  by  force.  He  may,  if  he  elects, 
resort  to  his  action  of  ejectment  and  in  the  same  suit  recover  dam- 
ages which  may  be  trebled,  if  the  wrongful  entering  or  withhold- 
ing are  shown  to  be  of  the  character  described  in  this  section. 
Compton  V.  The  Chelsea,  139  N.  Y.  538. 

Plaintiff  will  not  be  entitled  to  treble  damages  where  the  com- 
plaint alleges  and  the  proof  shows  the  conversion  of  plaintiff's 
goods  by  the  defendant  concurrently  with  the  forcible  ejection,  and 
some  part  of  the  verdict  was  based  upon  such  conversion.  Kirchner 
V.  Nexv  Home  Sewing  Machine  Co.  16  Supp.  761,  42  St.  Rep.  907. 

Where  it  appeared  that  defendant  was  in  possession  and  plain- 
tiff visited  the  premises  to  take  possession,  and  defendant 
attempted  to  eject  her,  but  went  away  leaving  her  upon  the 
premises,  and  plaintiff  subsequently  left  the  premises,  defendant 
remaining  in  possession,  treble  damages  will  not  lie.  O' Donne II 
v.  Mclntyre,  2  St.  Rep.  689.  Plaintiff  will  not  be  allowed  to 
treble  the  damages  found  by  the  verdict  of  a  jury  if  the  increased 
amount  will  exceed  the  sum  demanded  in  the  complaint.  Pilaris 
v.  Gere,  31  Hun,  443. 

Where  the  waste  complained  of  is  the  result  of  neglect  to 
repair  rather  than  tortious  conduct,  the  landlord,  in  an  action 
against  his  tenant,  cannot  recover  treble  damages.  Danzinger  v. 
SilbertJian,  2 1  Civ.  Pro.  R.  283.  A  lessee  for  years  of  premises  upon 
which  trees  stand  cannot  maintain  an  action  under  §  1667  for 
treble  damages  for  the  cutting  down  of  trees.  Such  a  person  is 
not  an  owner  within  the  meaning  of  this  provision.  Such  a  lessee 
may,  however,  maintain  a  common-law  action  for  trespass  based 
upon  the  fact  that  he  is  in  possession,  and  may  recover  his  actual 
damages.     Lewis  v.  Thonipson,  3  App.  Div.  329. 


II 


ACTION    FOR    CUTTIXC.    TREES    OR    TIMBER.  583 


Precedent  for  Complaint. 


Section  280,  of  chapter  395,  Laws  of  1895,  is  as  follows: 

§  280.  Actions  for  trespasses  upon  forest  preserve. 

The  board  of  fisheries,  game  and  forest  may  bring  in  the  name  of  the  people 
of  the  State  any  action  to  prevent  trespass  upon  or  injury  to  the  forest  preserve 
and  recover  damages  therefor,  or  to  recover  lands  properly  forming  part  of  the 
forest  preserve,  but  occupied  or  held  by  persons  not  entitled  thereto,  or  for  the 
maintenance  and  protection  of  the  forest  preserve,  which  any  owner  of  lands 
would  be  entitled  to  bring;  or  for  cutting  or  carrying  away,  or  causing  to  be 
cut  or  assisting  to  cut,  any  tree  or  timber  within  the  forest  preserve,  or  any  bark 
thereupon,  or  removing  any  tree,  timber  or  bark,  or  any  portion  thereof  from 
such  forest  preserve.  Every  person  violating  the  provisions  of  this  section,  re- 
lating to  the  cutting  or  carrying  away  any  timber,  trees  or  bark,  shall  forfeit 
to  the  State  the  sum  of  twenty-five  dollars  for  every  tree  cut  or  carried  away 
by  him  or  under  his  direction.  The  board  of  fisheries,  game  and  forest  may, 
with  the  consent  of  the  attorney-general  and  comptroller,  employ  attorneys  and 
counsel  to  prosecute  any  such  action  or  to  defend  any  action  brought  against 
the  board  or  any  of  its  members  or  subordinates  arising  out  of  their  or  his  official 
conduct  with  relation  to  the  forest  preserve.  Any  attorney  or  counsel  so  em- 
ployed shall  act  under  the  direction  of  and  in  the  name  of  the  attorney-general. 
Where  such  attorney  or  counsel  is  not  so  employed,  the  attorney-general  shall 
prosecute  and  defend  such  actions.  A  preliminary  or  final  injunction  shall,  on 
application  in  an  action  brought  by  or  at  the  instance  of  the  board  of  fisheries, 
game  and  forest,  be  granted  restraining  any  act  or  trespass,  waste  or  destruction 
upon  the  forest  preserve.  All  such  actions  for  the  prosecution  shall  be  brought 
in  the  county  where  the  trespass  is  alleged  to  have  been  committed. 

Precedent  for  Complaint  Setting  Out  Cause  of  Action  Un- 
der Statute  and  Also  for  Trespass  Under  Code. 

SUPREME  COURT  — Fulton  County. 


THE  PEOPLE  OF  THE  STATE  OF  NEW 
YORK,  Plaintiff, 

agst. 

RUSSELL  E.  HOLMES,  Defendant. 

The  complaint  of  the  People  of  the  State  of  New  York,  the  plain- 
tiff herein,  by  the  Attorney-General,  shows  to  the  court  and  alleges: 

That  this  action  is  brought  pursuant  to  i;  112  of  chapter  332  of  the 
Laws  of  1893,  known  as  chapter  43  of  the  General  Laws,  and  to  §  280 
of  chapter  395  of  the  Laws  of  1895,  known  as  chapter  31  of  the  Gen- 
eral Laws,  and  the  provisions  of  the  statutes  amendatory  thereof,  or 
granting  like  authority,  and  on  the  order  of  the  Fisheries,  Game 
and  Forest  Commission  of  the  State  of  New  York. 

For  a  first  cause  of  action  herein,  plaintiff  shows,  upon  information 
and  belief: 

I.  That  heretofore  during  the  year  1894,  at  the  town  of  Caroga 
in  the  county  of  Fulton,  the  defendant  entered  upon  the  lands  in  the 


584  ACTION   FOR   CUTTING   TREES   OR   TIMBER. 

Precedent  for  Complaint. 

forest  preserve  owned  by  and  in  possession  of  the  State  of  New 
York,  situate  in  said  town  and  county,  and  described  as  follows: 
Lot  68,  subdivision  10,  Glen  Bleecker  and  Lansing  patent. 

II.  That  the  defendant,  at  the  times  mentioned,  wrongfully  and 
unlawfully  and  without  right  or  authority,  cut,  carried  away,  caused 
to  be  cut  and  carried  away  and  assisted  in  cutting  and  removing 
trees  growing  and  standing  upon  said  premises,  and  timber  and  logs 
remaining  on  said  premises,  the  property  of  the  State  of  New  York, 
as  follows,  namely:    2,000  trees. 

III.  That  said  acts  of  defendant  were  committed  without  the 
license  or  consent  of  the  plaintiff  and  without  right  or  authority  and 
contrary  to  and  in  violation  of  the  provisions  of  §  112  of  chapter  332 
of  the  Laws  of  1893,  known  as  chapter  43  of  the  General  Laws,  and 
§  280  of  chapter  395  of  the  Laws  of  1895,  known  as  chapter  31  of  the 
General  Laws,  whereby  the  State  became  entitled  to  maintain  an 
action  for  such  cutting,  carrying  away  and  causing  to  be  cut  or 
assisting  to  cut  or  removing  such  trees  and  timber,  the  said  premises 
being  within  the  forest  preserve  of  the  State  of  New  York,  and  this 
defendant  thereby  became  liable  to  the  State  in  the  sum  of  $25  for 
every  tree  cut  or  carried  away  by  him  or  under  his  direction,  and 
that  an  action  has  accrued  to  recover  the  same,  and  this  plaintiff  is 
entitled  to  recover  from  said  defendant  the  sum  of  $50,000  as  and  for 
the  penalty  and  forfeiture  provided  for  by  said  statutes,  for  which 
sum  plaintiff  demands  judgment. 

For  a  second  and  further  cause  of  action,  the  plaintiff  herein 
shows  upon  information  and  belief: 

I.  That  heretofore  during  the  year  1894,  at  the  town  of  Caroga 
in  the  county  of  Fulton,  the  defendant  e»tered  upon  lands  in  the 
forest  preserve  owned  by  and  in  the  possession  of  the  State  of  New 
York,  situate  in  said  town  and  county,  and  described  as  follows: 
Lot  68,  subdivision  i.  Glen  Bleecker  and  Lansing  patent. 

II.  That  the  defendant  at  the  times  mentioned,  wrongfully  and 
unlawfully  and  without  right  or  authority,  cut,  carried  away,  caused 
to  be  cut  and  carried  away  and  assisted  in  cutting  and  removing, 
and  converted  to  his  own  use,  timber  and  logs  remaining  on  said 
premises  the  property  of  the  State  of  New  York,  as  follows,  namely: 
2,000  trees;  that  such  trees  were  of  the  value  of  $5  each. 

III.  Whereby  the  plaintiff  lost  said  trees  and  timber,  and  the 
defendant  committed  waste  upon  said  lands  whereby  he  became  lia- 
ble to  pay  treble  the  amount  of  actual  damages  sustained  by  this 
plaintiff,  such  actual  damages  being  the  sum  of  $10,000,  and  plaintiff 
demands  judgment  for  the  sum  of  $30,000. 

Wherefore,  plaintiff  demands  judgment  against  this  defendant  for 
the  sum  of  $80,000  besides  the  costs  of  this  action. 

T.   E.   HANCOCK,  Attorney-General, 

Attorney  for  Plaintiff. 


W. 


CHAPTER   X. 

NOTICE  OF  PENDENCY  OF  ACTION. 

PAGE. 

Article  i.   Contents  and  filing  of  notice  of  pendency.     Sees. 

1670,  1672,  1673 585 

2,  Effect  of  notice  of  pendency.     Sees.  167 1,  1685 591 

3.  When  notice  of  pendency  cancelled.     Sec.  1674  . , .  598 

Sections  of    the    Code    of    Procedure    and  Where    Found   in 

THIS  Chapter: 


SEC. 


ART.    PAGE. 


1670.  Notice  of  pendency  of  action  by  plaintiff .  i  585 

1671.  Effect  of  notice 2  591 

1672.  Notice  to  be  recorded  and  indexed ......    i  580 

1673.  Notice  of  pendency  of  action  by  defendant i  590 

1674.  When  and  how  notice  may  be  cancelled 3  598 

1685.   Liability  of  purchaser  pending  an  action 2  591 

ARTICLE    I. 

Contents  and  Filing  of  Notice  of  Pendency.     §§  1670, 

1672,  1673. 

Sub.  I.  Nature  and  office  of  lis  pendens.     §  1670. 

2.  When  lis  pendens  proper. 

3.  Contents  of  notice  of  pendency  and  amendments. 

4.  When  and  where  lis  pendens  to  be  filed.     §  1672. 

5.  Lis  pendens  filed  by  defendant.     §  1673. 

Sub.  I.  Nature  and  Office  of  Lis  Pendens.     §  1670. 
§  1670.  Notice  of  pendency  of  action  by  plaintiff. 

In  an  action  brought  to  recover  a  judgment  affecting  the  title  to,  or  the  pos- 
session, use,  or  enjoyment  of,  real  property,  the  plaintiff  may,  when  he  files  his 
complaint,  or  at  any  time  afterwards  before  final  judgment,  file,  in  the  clerk's 
office  of  each  county  where  the  property  is  situated,  a  notice  of  the  pendency  of 
the  action,  stating  the  names  of  the  parties,  and  the  object  of  the  action,  and 
containing  a  brief  description  of  the  property  in  that  county,  affected  thereby. 
Such  a  notice  may  be  filed  with  the  complaint,  before  the  service  of  the  sum- 
mons; but  in  that  case,  personal  service  of  the  summons  must  be  made  upon 
a  defendant,  within  sixty  days  after  the  filing,  or  else,  before  the  expiration  of 
the  same  time,  publication  of  the  summons  must  be  commenced,  or  service 
thereof  must  be  made  without  the  State,  pursuant  to  an  order  obtained  therefor 
as  prescribed  in  chapter  fifth  of  this  act. 

It  is  contemplated  by  the  provisions  of  the  Code  in  reference 
to  filing  lis  pendens  that   those   whose    conveyances   or   incum- 

[585] 


586 


I 


NOTICE   OF   PENDENCY    OF   ACTION. 


Art.  I.     Contents  and  Filing  of  Notice  of  Pendency. 


brances  appear  by  the  record  should  be  made  parties,  in  order  to 
charge  with  the  result  of  the  action  those  holding  under  or 
through  them  not  made  parties,  whose  interests  do  not  so  appear 
at  the  time  of  such  filing.  Kursheedt  v.  Union  Dime  Savings 
Institution,  ii8  N.  Y.  358. 

The  theory  of  the  rule  of  ''  lis  pendens"  is  that  during  the  pro- 
gress of  the  suit  there  is  to  be  no  change  in  the  existing  state  of 
things.  It  is  a  rule  of  public  policy  and  applicable  only  where 
the  action  is  pending.  It  is  not  actual  notice,  but  it  is  necessary 
that  litigation  should  be  binding  on  all  parties,  and  its  object  is 
to  bring  litigation  to  an  end  and  prevent  the  introduction  of  new 
parties.  It  is  only  applicable  in  cases  involving  title  to  real  estate 
or  interests  therein,  and  it  should  not  be  applied  to  personal  prop- 
erty, since  commerce  requires  a  free  and  unrestricted  sale  of  such 
property,  unburdened  by  the  rules  of  lis  pendens.  It  has  always 
been  deemed  harsh  in  law,  but  wise  in  its  limitation  to  real  estate. 
In  commercial  transactions  its  hardships  are  apparent.  Dwight, 
Commissioner,  in  Holbrook  v.  Nezv  Jersey  Zinc  Co.  57  N.  Y.  616. 
It  is  said  in  LeitcJi  v.  Wells,  48  N.  Y.  595,  that  the  rule  of  lis 
pendens  is  a  harsh  one  and  not  a  favorite  of  the  courts.  The 
theory  of  a  lis  pendens  is  that  there  must  be  no  innovation  in  the 
proceedings  so  as  to  prejudice  the  rights  of  the  plaintiff.  It  is  a 
rule  to  give  effect  to  the  rights  ultimately  established  by  the  judg- 
ment.    Laniont  v.  Cheshire,  65  N.  Y.  30. 

The  filing  of  a  notice  of  pendency  of  action  is  for  the  protec- 
tion of  the  plaintiff,  and  the  court  will  not  interfere  to  direct  the 
filing  of  such  a  notice.  Kirk  v.  Kirk,  12  Supp.  326.  Where  an 
action  in  which  a  notice  of  pendency  was  filed  has  been  dismissed 
and  the  notice  is  canceled,  it  ceased  to  be  a  statutory  notice  to 
bo7ia  fide  purchaser  of  the  premises  described  in  it.  Valentine  v. 
Austin,  124  N.  Y.  400. 


Sub.  2.  When  Lis  Pendens  Proper. 

Where  an  action  is  one  in  which  the  right  is  given  the  plaintiff 
by  the  Code  to  file  a  notice  of  pendency,  the  right  is  absolute,  not 
resting  in  the  discretion  of  the  court,  and  if  the  notice  is  properly 
filed,  it  may  not  be  canceled  save  in  the  manner  prescribed  by 
the  Code.     Bevian  v.   Todd,  124  N.  Y.  114. 

The  right  to  file  a  notice  of  pendency  of  action  in  all  actions 
affecting  the  title  to  real  estate  is  an  absolute  one.     When  once 


NOTICE   OF   PENDENCY    OF   ACTION.  587 

Art.  I.     Contents  and  Filing  of  Notice  of  Pendency. 

filed  in  a  proper  action  the  court  cannot  order  it  canceled  so  long  as 
the  action  is  pending  and  undetermined.  If  filed  in  an  action 
not  affecting  real  estate,  it  is  a  nullity.  Mills  v.  Bliss,  55  N.  Y. 
139.  It  may  be  filed  in  an  action  to  have  a  debt  declared  a  lien 
upon  a  married  woman's  separate  real  estate.  Sanders  v.  War- 
ner, 2  Week.  Dig.  507 ;  Brainard  v.  White,  43  Supr.  Ct.  399. 
In  an  action  to  avoid  or  cancel  an  assignment  of  a  lease  of  lands. 
Wilmont  v.  Mescrole,  41  Supr.  Ct.  274.  In  an  action  to  enforce 
specific  performance  of  a  contract  for  the  sale  of  a  leasehold  inter- 
est in  lands.  Ruck  v.  Langc,  10  Hun,  303.  In  an  action  where 
the  complaint  alleges  title  to  a  share  of  the  property  devised  and 
to  the  share  of  the  rents  and  profits  received  as  an  executor,  and 
prays  an  accounting  and  adjudication  as  to  the  rights  of  the  par- 
ties in  the  premises,  and  the  sale  and  distribution  of  the  proceeds. 
Kunz  V.  Bachuian,  61  How.  519.  The  rule  that  a  lis  pendc7is 
may  be  filed  in  any  case  relating  to  real  estate  is  held  in  Little  v. 
Ransom,  8  Abb.  N.  C.  159,  n,  and  Brainard  v.  White,  48  Supr. 
Ct.  399.  The  right  to  file  a  lis  pendens  is  an  absolute  right  not 
depending  on  the  discretion  of  the  court,  and  a  notice  once  filed 
in  a  .proper  action  can  only  be  canceled  by  order  of  the  court 
when  the  action  shall  be  settled,  discontinued  or  abated  or  final 
judgment  rendered  against  the  party  filing  the  notice,  and  the 
time  to  appeal  has  expired,  or  where  the  party  unreasonably 
neglects  to  proceed.      Niebuhr  v,  Schreyer,  10  Civ.  Pro.  R.  72. 

Notice  of  pendency  of  action  may  be  filed  in  ejectment.  Code, 
§  1526.  Notice  of  pendency  is  unnecessary  to  render  a  judg- 
ment in  ejectment  conclusive  upon  a  party  claiming  under  defend- 
ant by  title  acquired  pendente  lite.  Sheridan  v.  Andreivs,  49 
N.  Y.  478.  It  has  no  application  to  commercial  paper;  Holbrook 
V.  Neiv  Jersey  Zinc  Co.  57  N.  Y.  616;  nor  to  a  county  bond. 
Lindsley  v.  Diefcndorf,  43  How.  357.  h  lis  pendens  is  unnecessary 
to  recover  for  pos.session  of  real  property  even  against  a  pur- 
chaser pendente  lite.  It  is  only  against  mere  equities  that  a 
purchaser  is  protected.  Sheridan  v.  Andrews,  49  N.  Y.  478; 
Campbell  v.  Hall,  16  N.  Y.  579.  An  action  is  maintainable  for 
wrongfully,  maliciously  and  without  probable  cause  filing  a  lis 
pendens,  by  which  plaintiff  was  prevented  from  selling  the  prop- 
erty affected.  Smith  v.  Smith,  20  Hun,  555.  Contra,  S.  C.  on 
reargument,  26  Hun,  573. 

In  an  action  to  recover  purchase  money  paid  under  a  contract 


588  NOTICE   OF   PENDENCY   OF   ACTION. 


Art.  I.     Contents  and  Filing  of  Notice  of  Pendency. 


of  sale  of  land  which  the  vendee  refuses  to  accept  because  of 
defect  in  the  vendor's  title,  a  /is  pendens  may  be  filed  when  the 
vendee  prays  that  such  money  may  be  declared  a  lien  on  the 
land.     BacJiiiimDi  v.   Wagjier,  i6  Supp.  ^J. 

After  the  filing  of  a  lis  pendois  in  an  action  of  partition  a  per- 
son cannot  obtain  from  a  party  to  the  action,  by  means  of  a 
power  of  sale  in  a  will,  a  title  superior  to  and  which  will  super- 
sede the  judgment.  Shannon  v.  Pentrj,  i  App.  Div.  331,  37  N. 
Y.  Supp.  304,  72  St.  Rep.  643. 

Sub.  3.    Contents  of  Notice   of   Pendency   and   Amendments. 

The  notice  should  describe  only  the  property  to  be  actually 
affected  by  the  judgment,  and  where  an  attachment  issues  it 
should  include  only  the  property  attached.  If  it  includes  other 
property,  it  is  inoperative  as  to  such  property.  Fitzgerald  v. 
Blake,  28  How.  no.  It  seems  that  a  party  is  not  required  in  a 
lis  pendens  to  anticipate  and  state  all  the  defects  which  may 
appear  in  the  proof  of  another  claimant  of  the  land  on  the 
trial  of  any  action  which  the  latter  may  bring.  Brozun  v.  Good- 
win, 75  N.  Y.  409.  K  lis  pendens,  in  an  attachment  case,  describ- 
ing the  property  as  "all  the  real  property  of  defendant,  or  in 
which  she  may  have  an  interest,  situate  in  Chenango  county,"  is 
a  nullity.  Jaffray  v.  Brozvn,  17  Hun,  575.  The  addition  of  one 
wrong  initial  between  the  Christian  and  surname  of  a  party  will 
not  have  the  effect  of  relieving  the  purchaser  of  property  de- 
scribed in  notice  from  the  presumption  of  having  a  full  knowl- 
edge of  the  pendency  of  an  action  in  respect  thereto.  Weber 
V.  Fowler,  11  How.  458.  So  a  lis  pendens,  which  gives  the 
city  and  ward  in  which  a  mortgage  is  recorded,  but  omits  to 
specify  the  county,  is  a  substantial  compliance  with  the  statute 
and  is,  in  the  absence  of  objections  before  judgment,  sufficient. 
Potter  V.  Rowland,  8  N.  Y.  448. 

Notice  of  pendency  may  be  amended  by  inserting  in  the  notice 
a  specific  description  of  a  lot  of  land  omitted  by  mistake.  Van- 
derJicyden  v.  Gary,  38  How.  367.  It  may  also  be  amended  by 
striking  out  portions  of  descriptions  of  property  not  proper  to  be 
included  in  such  notice.  Fitzgerald  v.  Blake,  28  How.  no. 
Where  parties  are  stricken  out,  the  safer  way  is  to  file  a  new 
notice.  Ctirtis  v.  Hitchcock,  10  Paige,  399.  If,  after  filing,  new 
defendants  are  added,  an  amended  notice  should  be  filed.     Curtis 


NOTICE   OF   PENDENCY    OF   ACTION.  589 

Art.  I.     Contents  and  Filing  of  Notice  of  Pendency. 

V.  Hitchcock,  10  Paige,  399;  Clark  v.  Havens,  Clarke's  Ch.  560. 
An  amended  lis  pendens  filed  with  or  after  the  filing  of  an  author- 
ized amended  summons  and  complaint  is  effectual,  although  the 
filing  of  the  original  lis  pendens  was  irregular  and  ineffectual. 
Daly  V.  Bnrchell,  13  Abb.  (N.  S.)  264. 

It  is  within  the  power  of  the  court  to  amend  the  notice  by 
making  formal  corrections ;  but,  if  new  parties  be  added,  an 
amended  notice  must  be  filed,  at  least  as  to  the  parties  added. 
Weeks  V.  Tomes,  16  Hun,  34c,  affirmed,  76  N.  Y.  601  ;  JV'aringw. 
Waring-,  7  Abb.  472 ;  VanderJicyden  v.  Gary,  38  How.  367.  A 
defect  in  the  affidavit  required  may  be  amended,  as  may  a  clerical 
defect  in  the  notice.  White  v.  Coulter,  i  Hun,  357;  Weber  v. 
Fowler,  1 1  How.  458;  Potter  v.  Rotvlajid,  8  N.  Y.  448. 

Where  it  appeared  that  a  notice  of  pendency  affected  real  estate 
of  defendant  which  could  not  possibly  be  affected  b}-  the  relief 
sought,  the  court  required  an  amendment  and  correction  thereof 
as  a  condition  of  awarding  plaintiff  a  new  trial.  Beavtan  v.  Todd, 
4  St.  Rep.  84. 

Sub.   4.    When  and  Where   Lis   Pendens  to  kk  Fti.kd.     §  1672. 

§  1672.  Notice  to  be  recorded  and  indexed. 

Each  county  clerk,  with  whom  such  a  notice  is  filed,  must  immediately  record 
it,  in  a  book  kept  in  his  office  for  that  purpose,  and  index  it  to  the  name  of  each 
defendant,  specified  in  a  direction,  appended  at  the  foot  of  the  notice,  and  sub- 
scribed by  the  attorney  for  the  plaintiff.  The  expense  of  procuring  a  new  book, 
when  necessary,  must  bv,  paid  out  of  the  county  treasury,  as  other  county  charges. 

Rule  60  requires  proof,  on  moving  for  judgment,  of  filing  of  a 
notice  of  pendency  of  action  containing  the  names  of  the  parties 
thereto,  the  object  of  the  action,  and  a  description  of  the  property 
in  the  county  affected  by  it,  the  date  of  the  mortgage,  the  parties 
thereto,  and  the  time  and  place  of  recording  the  same,  at  least 
twenty  days  before  such  application,  and  at  or  after  the  time  of 
filing  the  complaint  as  required  by  law.  See  this  rule  under 
Article  VI  of  Foreclosure.  And  a  failure  to  make  such  proof 
will  render  the  judgment  irregular,  but  not  void.  Curtis  v.  Hitch- 
cock, 10  Paige,  359;  Potter  v.  Roivland,  8  N.  Y.  448.  The  notice 
has  no  force  until  the  complaint  is  filed.  Query,  whether,  if  filed 
before,  it  becomes  operative  on  filing  complaint,  or  whether  an 
amended  notice  should  be  filed.  Stern  v.  O' Connelly  35  N,  Y. 
104;  Leitch  V.  Wells,  48  N.  Y.  5S5 ;    Weeks  v.  Jones,  76  N.  Y.  601 ; 


590 


NOTICE   OF   PENDENCY   OF   ACTION. 


Art.  I.     Contents  and  Filing  of  Notice  of  Pendency. 


Tatev.  Jordan,  3   Abb.  392;  Butler  \.    Tovilinson,  38   Barb.  641  ; 
Daly  V.  Burchcll,  13  Abb.  (N.  S.)  268. 

The  commencement  of  an  action  by  the  service  of  a  summons 
does  not  create  a  lis  pendens  affecting  third  persons  not  parties  to 
the  action.  To  bind  a  ^wxc:\\-dA&x pendente  lite  hy  the  judgment, 
there  must  also  be  a  bill  or  complaint  on  file  at  the  time  of  his 
foreclosure  in  which  the  claim  upon  the  property  is  set  forth. 
In  the  absence  of  proof  it  will  not  be  presumed  a  complaint  was 
filed  prior  to  the  entry  of  judgment.  LeitcJi  v.  Wells,  48  N.  Y. 
585  ;  Atkins  v.  Hosley,  3  T.  &  C.  322.  The  notice  of  pendency 
is  wholly  inoperative  against  incumbrancers  or  purchasers  until 
the  complaint  be  also  filed.  Benson  v.  Sayrc,  7  Abb.  472,  n. ; 
Burroughs  v.  Reiger,  12  How.  171  ;  Weeks  v.  Tomes,  16  Hun,  349; 
Farmers  Loan  &  Trust  Co.  w  Diekso)i,  9  Abb.  61  ;  President 
D.  &  H.  Ca?ial  Co.  v.  Harris,  1 5  Week.  Dig.  36.  A  substituted 
service  of  summons  is  equivalent  to  a  personal  service  under  this 
section  —  Ferris  v.  Plummer,  46  Hun,  515 — and  is  in  time  if 
made  on  the  sixty-first  day  after  the  filing  of  lis  pendens.  Grib- 
bon  V.  Freel,  93  N.  Y.  93.  See  Bogart  v.  Sweezy,  26  Hun,  463. 
Where  the  real  estate  and  roadbed  of  a  railroad  extend  through 
several  counties  and  there  is  no  proof  that  the  complaint  in  the 
action  was  filed  in  any  one  of  said  counties,  a  lis  pendens,  if  filed, 
would  be  inoperative.  Cornell  v.  Utiea,  ete.  R.  R.  Co.  61  How. 
186.  Where,  after  filing  lis  pendens  and  service  of  summons 
upon  one  or  more  of  the  defendants  in  a  suit  in  foreclosure, 
a  judgment  is  docketed  against  the  owner  of  the  equity,  the  judg- 
ment creditor  is  bound  by  the  judgment  the  same  as  if  he  were  a 
party  thereto,  and  this  although  at  the  time  of  the  entry  of  his 
judgment  the  ^owner  of  the  equity  had  not  been  served  in  the 
foreclosure  suit.  The  Code  gives  the  benefit  of  a  notice  of  lis 
pendens  where  there  has  been  due  service  of  the  summons  on  any 
defendant  in  the  suit.     Fuller  v.  Seribner,  y6  N.  Y.  190. 

Sub.  5.   Lis  Pendens  P'iled  by  Defendant.     §  1673. 

§  1673.  Notice  of  pendency  of  action  by  defendant. 

Where  a  defendant  sets  up  in  his  answer  a  counterclaim,  upon  which  he 
demands  an  affirmative  judgment  affecting  the  title  to,  or  the  possession,  use,  or 
enjoyment  of,  real  property,  he  may,  at  the  time  of  filing  his  answer,  or  at  any 
time  afterwards  before  final  judgment,  file  a  like  notice.  The  last  three  sections 
apply  to  such  a  notice.  For  the  purpose  of  such  an  application,  the  defendant 
filing  such  a  notice  is  regarded  as  a  plaintiff,  and  the  plaintiff  is  regarded  as  a 
defendant. 


NOTICE   OF   PENDENCY   OF   ACTION.  59I 

Art.  2.     Effect  of  Notice  of  Pendency. 

A  defendant  who  sets  up  in  his  answer  a  counterclaim  on 
which  he  demands  an  affirmative  judgment,  affecting  the  title  to 
or  possession  or  enjoyment  of  real  property  is  given  the  right  by 
this  section  to  file  a  lis  pendens  where  the  answer  sets  up  as  a 
counterclaim  on  behalf  of  the  firm  of  which  the  defendant  was  a 
member,  that  plaintiff  took  funds  of  the  firm  and  purchased 
therewith  real  property  which  was  legally  and  equitably  held  and 
should  be  applied  to  the  payment  of  certain  profits  alleged  to  be 
due  defendant  and  asked  judgment  for  the  sale  of  the  property 
and  that  the  proceeds  be  applied  to  the  discharge  of  defendant's 
claim,  it  was  held  that  this  counterclaim  and  the  judgment 
demanded  affected  the  title  to  real  property,  so  that  a  lis  pendens 
was  proper.  Niebnhr  v.  Sehreyer,  i  St.  Rep.  626;  S.  C.  13  Daly, 
546,  10  Civ.  Pro.  R.  72. 

ARTICLE    11. 
Effect  oy  Notice  of  Pendency.     §  1671,  1685. 

§  1671.   Effect  of  notice. 

Where  a  notice  of  the  pendency  of  an  action  may  be  filed,  as  prescribed  in  the 
last  section,  the  pendency  of  the  action  is  constructive  notice,  from  the  time  of 
so  filing  the  notice  only,  to  a  purchaser  or  incumbrancer  of  the  property  affected 
thereby,  from  or  against  a  defendant,  with  respect  to  whom  the  notice  is  directed 
to  be  indexed,  as  prescribed  in  the  next  section.  A  person,  whose  conveyance 
or  incumbrance  is  subsequently  executed,  or  subsequently  recorded,  is  bound  by 
all  proceedings  taken  in  the  action,  after  the  filing  of  the  notice,  to  the  same  ex- 
tent as  if  he  was  a  party  to  the  action. 

^  1685.   Liability  of  pvirchaser  pending  an  action. 

If  the  defendant,  in  an  action  of  ejectment  or  an  action  for  dower,  aliens  the 
real  property  in  question,  after  the  filing  of  a  notice,  as  specified  in  section  1670 
of  this  act,  and  an  execution  against  him  for  the  plaintiff's  damages  is  returned 
wholly  or  partly  unsatisfied,  an  action  may  be  maintained  by  the  plaintifif  against 
any  person  who  has  been  in  possession  of  the  property,  under  the  defendant's 
conveyance,  to  recover  the  unsatisfied  portion  of  the  damages,  for  a  lime  not  ex- 
ceeding that,  during  which  he  possessed  the  property. 

Section  1671  does  not  apply  to  defendants  actually  served  with 
process,  but  is  a  statutorj^-  .substitute  for  actual  notice  to  sub.se- 
quent  purchasers  and   incumbrancers.     Parker  v.   Selye,  3  App. 

Div.  150. 

The  doctrine  applicable  to  lis  pendens  is  based  upon  the 
theory  of  public  policy,  that  while  a  suit  is  pending  there 
should  be  no  change  in  the  existing  state  of  things,   and  its  pur- 


592  NOTICE   OF   PENDENCY   OF   ACTION. 

Art.  2.     Effect  of  Notice  of  Pendency. 

pose  is  to  give  effect  to  the  right  ultimately  established  by  the 
judgment,  and  its  office  is  to  carry  into  effect  rule  that  pending 
the  suit  nothing  shall  be  changed.  Crocker  v.  Lczvis,  79  Hun, 
400,  affirmed  144  N.  Y.  140. 

After  the  filing  of  a  lis  pendens  against  real  property,  it  is 
out  of  the  power  of  the  owner  thereof  to  deprive  the  person 
filing  the  same  of  any  right  in  such  property,  by  an  alienation 
thereof  by  mortgage  or  otherwise.  Any  person  to  whom  such 
property  is  mortgaged  subsequent  to  the  filing  of  such  lis  pendens 
is  bound  by  all  the  proceedings  in  the  action  wherein  the  lis  pen- 
dc7is  was  filed,  subsequent  to  the  filing  thereof,  to  the  same  extent 
as  though  he  had  been  made  a  party  to  the  action.  Under 
§  1671  of  the  Code,  notice  of  pendency,  in  an  action  to  restrain 
the  violation  of  a  covenant  restricting  use  of  land,  does  not  give 
a  judgment  in  favor  of  plaintiff  for  costs,  priority  over  a  mort- 
gage on  the  land,  given  and  recorded  after  the  filing  of  such  notice 
and  before  the  rendition  of  such  judgment.  Crocker  v.  Lewis,  ^1 
St.  Rep.  31,  144  N.  Y.  140,  39  N.  E.  i,  affirming  61  St.  Rep.  503, 
79  Hun,  400,  29  Supp.  798. 

As  to  the  effect  of  filing  lis  pendens^  see  elaborate  discussion  by 
Commissioner  D wight,  in  Holbrook  v.  N.  J.  Zinc  Co.  57  N.  Y. 
616;  Lament  v.  C/iesliire,  65  N.  Y.  30,  supra.  The  only  office  of 
a  lis  pendens  is  to  give  constructive  notice  to,  and  to  bind  by  the 
subsequent  proceedings,  those  who  may  deal  with  defendant^ 
with  respect  to  the  property  involved  in  the  action  during  the 
pendency,  and  before  final  judgment.  Sheridan  v.  Andrews,  49 
N.  Y.  478.  It  is  a  statute  substitute  for  actual  notice;  Hall  y. 
Nelson.,\\  How.  32;  and  is  as  effectual  against  any  disposition  of 
the  property  as  an  injunction.  Stephenson  v.  Fayerweather,  21 
How.  449. 

The  filing  of  a  lis  pendens  is  merely  a  statutory  substitute  for 
actual  notice  to  subsequent  purchasers  and  incumbrancers  of  the 
existence  of  plaintiff's  claim,  and  that  he  has  commenced  an 
action  to  enforce  it  upon  the  lands;  whoever  purchases  such 
lands  afterwards  buys  with  notice  equivalent  to  actual  knowledge 
of  these  facts.  Chapman  v.  West,  17  N.  Y.  125;  Hall  v.  Nelson, 
23  Barb.  88.  The  assignee  of  a  mortgage  is  affected  by  a  notice 
of  pendency.  Hovey  v.  Hill,  3  Lans.  167.  In  an  action  to  fore- 
close a  mortgage,  a  grantee  subsequent  to  the  filing  of  the  lis 
pendens  is  bound  by  all  the  proceedings  in  the  action  to  the  same 


NOTICE   OF   PENDENCY   OF   ACTION.  593 

Art.  2.     Effect  of  Notice  of  Pendency. 

extent  as  if  he  were  a  party,  and  his  equity  of  redemption  is  cut 
off  by  the  decree.  Weyh  v.  Boylan,  63  How.  72,  affirming  62 
How.  397.  Parties,  and  all  in  privity  with  them,  are  bound. 
Craig  V.  Ward,  3  Keyes,  387,  affirming  36  Barb.  377.  A  pur- 
chaser/^;z<a^^«/^  lite  does  not  vary  the  rights  of  the  parties  to  the 
suit.  Murray  v.  Lilbiirn,  2  Johns.  Ch.  441  ;  Hendricks  v. 
Andrews,  7  Wend.  152.  Where  notice  of  pendency  of  action  is 
not  filed  in  the  clerk's  office,  it  was  said,  in  Wiswall  v.  McGowan, 
Hoff.  Ch.  125,  reversed  on  other  grounds,  2  Barb.  270,  that  a 
bona  fide  purchaser  is  not  affected  although  his  deed  be  not  re- 
corded at  the  time  of  the  commencement  of  the  suit.  A  like 
rule  was  held  in  Hall  v.  Nelson,  23  Barb.  88 ;  but  as  the  Code  now 
stands  the  filing  of  a  lis  peiidens  is  constructive  notice  to  a  pur- 
chaser of  the  equity  of  redemption  who  took  a  conveyance  prior 
to  the  filing,  but  whose  conveyance  was  recorded  subsequent  to 
such  filing,  and  he  is  bound  by  all  the  proceedings  taken  in  the 
action  thereafter,  to  the  same  extent  as  if  he  were  a  party  to  the 
action.  Kindberg  v.  Freeman,  39  Hun,  466.  Same  rule  held  in 
Batterman  v.  Albright,  6  St.  Rep.  334;  Spencer  v.  Berdcll,  45 
Hun,  179;  Ayrault  v.  Mnrphy,  54  N.  Y.  203.  A  party  not  claim- 
ing under  one  of  the  parties  to  the  suit  is  not  bound  by  a  lis  pen- 
dens.     Thompson  v.  Clark,  4  Hun,  164. 

A  lis  pendens  only  afifects  voluntary  alienation  by  the  defendant 
in  the  suit ;  it  does  not  affect  persons  claiming  in  hostility  to  his 
title,  such  as  a  purchaser  at  a  sale  for  unpaid  taxes.  Becker  v. 
Howard,  4  Hun,  359;  s.  c.  ^6  N.  Y.  5.  The  object  of  lis  pen- 
dens is  to  give  notice  to  those  who  claim  under  defendant,  and 
the  object  is  not  to  make  the  judgment  affect  others  than  the 
defendant  and  those  claiming  under  him.  Thompson  v.  Clark,  4 
Hun,  164.  The  maxim  pendente  lite  nihil  immovetiir  prevails  to 
the  extent  that  whoever  purchases  or  acquires  title  pendente  lite 
takes  it  subject  to  any  decree  which  may  be  made  in  respect  to 
it  in  the  pending  suit.  Zeitcr  v.  Boivman,  6  Barb.  133;  People  v. 
Connelly,  8  Abb.  128;  Harrington  v.  Slade,  22  Barb.  161.  Actual 
notice  to  a  purchaser,  of  a  lis  pendens  affecting  the  property  pur- 
chased, arrests  all  further  proceedings  toward  the  completion  of 
the  purchase.  Griswold  v.  Miller,  15  Barb.  520.  Where  a  party 
having  notice  of  a  suit,  to  reach  the  equitable  intere.sts  of  a  judg- 
ment debtor  in  lands,  purchases  such  lands  and  enters  upon  and 
improves  the  same,  he  cannot  come  into  equity  for  relief  to  have 
[Special  Actions  —  38.] 


594  NOTICE   OF   PENDENCY   OF   ACTION. 


Art.  2.     Effect  of  Notice  of  Pendency. 


his  improvements  discharged  from  the  Hen  of  the  decree  entered 
against  the  land,  nor  can  such  Hen  be  discharged  by  the  payment 
of  a  sum  of  money  to  the  value  of  the  lands  without  such  im- 
provements.    Patterson  v.  Broivn,  32  N.  Y.  81. 

The  section  of  the  old  Code,  from  which  §1671  was  taken,  was 
said  in  Slattery  v.  Sc/nvamiecke,  44  Hun,  79,  to  have  been  enforced 
and  carried  into  effect  according  to  the  import  of  the  language 
used  in  its  enactment,  citing  Stern  v.  O'Connell,  35   N.  Y.  104; 
Lament  v.  Cheshire,  65  N.  Y.  30.      In  the  latter  case  it  was  held 
that  the  filing  of  a  lis  pendens  has  no  greater  effect  than  making 
him  a  party  would  have.      If  no  relief  could  be  obtained  against 
him  in  the  action,  no  right  is  acquired  by  such  filing.      A  judg- 
ment docketed  subsequently  to  the  filing  of  a  lis  pendens  in  a  fore- 
closure suit,  and  service  of  the  summons  on  one  of  the  defend- 
ants is  a  subsequent  incumbrance,  and  the  judgment  creditor  is 
bound   by   the   decree,   although   not   made   a   party.     Fnllcr  v. 
Scribner,  y6  N.  Y.  190.      By  this  section  all  lienors  are  bound  by 
the  proceedings  subsequent  to  the  filing  of  the  lis  pejidens,  the 
same  as  if  they  were  parties  to  the  action.      Substituted  service 
for  that  purpose  is  equivalent  to  personal  service,  and  if  made  on 
the  sixty-first  day  after  filing  lis  pendens,  is  in  time.      Gibbon  v. 
Freel,    93   N.    Y.    93.       The    lis  pendens    in    an    action    for    the 
specific  performance   of  a   contract   for   the   sale   of   land  having 
been    filed  before   another   judgment   was    recovered    in  another 
action  against  the  same  defendant,  held,  that  such  judgment  was, 
as  to  the  land  contracted  to  be  sold,  subject  to  the  one  subse- 
quently recovered  in  the  suit  for  specific  performance,  which  was 
a  specific  lien  on  the  land.      Hull  v.  Spratt,  i  Hun,  298.     Actual 
notice  is  not  less  effectual  to  an  incumbrancer  than  before  the 
statute  as  to  lis  pendens.     Grisivold  v.  Miller,  1 5  Barb..  520 ;  Broiun 
v.  Goodwin,  i  Abb.  N.  C.  452.      A  lis  pendens,  where  the   action 
has  been  compounded  and  settled   by  the    parties,   is    no    valid 
objection  to  the  title.      Wilsey  v.  Dennis,  aa  I^arb.  i^/\,;  Niebnhr 
v.  Schreyer,  i  St.  Rep.  626. 

The  effect  of  the  notice  is  to  bind  all  subsequent  purchasers 
and  lienors,  but  not  to  affect  prior  incumbrancers.  Stiiyvesant  v. 
Hall,  2  Barb.  Ch.  151  ;  Lainont  v.  Chesire,  65  N.  Y.  30;  Chapman 
V.  West,  17  N.  Y.  125;  Mayer  w.  Hinman,  13  N.  Y.  180;  Dzvight 
V.  Phillips,  48  Barb.  1 16;  Fuller  v.  Scribner,  16  Hun,  130,  affirmed, 
76  N.  Y.  190;  Weyhv.  Boy  Ian,  6},  How.   72;  Cleveland  v.  Boer  urn. 


NOTICE   OF   PENDENCY   OF   ACTION.  595 


Art.  2.     Effect  of  Notice  of  Pendency, 


23  Barb.  201,  affirmed,  24  N.  Y.  613.  All  persons  having  subse- 
quent liens  are  bound,  whether  parties  to  the  action  or  not.  Kipp 
V.  Brandt,  49  How.  358;  Stern  v,  O'Conncll,  35  N.  \\   104. 

The  general  principle  that  a  party  who  takes  \:\\.\<i  pendente  Hie, 
takes  subject  to  the  action  in  progress  and  need  not  be  made  a 
party,  is  recognized  in  Zeiter  v.  Bozvman,  6  Barb.  133;  Cleveland 
V.  Boeruni,  24  N.  Y.  617;  Hayden  v.  Bitchlm,  9  Paige,  512.  The 
right  to  file  is  absolute  in  all  actions  affecting  real  estate.  Mills 
V.  Bliss,    55  N.  Y.   139. 

A  notice  of  pendency  duly  recorded  does  not  make  the  title 
defective  nor  create  a  lien  on  the  land.  So  held  where  a  suit  had 
been  pending  in  Chancery  for  forty-six  years  and  no  steps  had 
been  taken  adversely  to  the  defendant.  A  purchaser  pending  the 
litigation,  if  he  buys  in  good  faith  and  without  actual  notice  of 
the  claims  of  the  litigants,  is  not  affected  by  the  suit  unless  it  has 
been  prosecuted  with  due  diligence.  Hayes  v.  Nourse,  1 14  N.  Y. 
595.  The  provisions  of  this  section  do  not  include  a  case  where  the 
purchaser  or  incumbrancer  has,  in  fact,  become  possessed  of  the 
premises.  Where  the  persons  so  in  possession  are  not  made 
parties  to  the  action,  a  complete  title  with  an  immediate  right  of 
possession  cannot  be  given  to  the  purchaser  at  the  sale,  and  he  is 
entitled  to  be  relieved  from  purchase.  Welsh  v.  ScJioen,  36  St.  Rep. 
538.  The  filing  of  a  notice  of  pendency  is  constructive  notice  to  a 
purchaser  from  a  defendant  from  the  time  of  filing,  and  a  person 
whose  conveyance  is  subsequently  recorded  is  bound  to  the  same 
extent  as  if  he  were  a  party,  but  it  seems  that  if  plaintiff  is  aware 
of  the  title,  the  person  holding  it  must  be  a  party  to  be  bound. 
Bell  y.  Gittere,  14  St.   Rep.  61. 

Where  a  receiver  is  appointed  in  proceedings  supplementary  to 
execution  under  a  judgment  recovered  subsequent  to  the  com- 
mencement of  the  action  by  the  judgment  debtor,  who  recovered 
real  estate  conveyed  by  him  under  an  absolute  deed,  which  is 
claimed  to  be  a  mortgage,  after  the  filing  of  a  lis  pendens  in  such 
action,  such  receiver  is  bound  by  the  judgment  subsequently 
recovered,  to  the  same  extent  as  if  he  had  been  sustituted  as  the 
plaintiff.  Spencer  v.  Berdell,  45  Hun,  179.  In  Connor  v.  Connor 
36  St.  Rep,  823,  the  rule  is  reiterated  that  a  person  whose  con- 
veyance is  executed  or  recorded  after  filing  of  notice  of  pendency, 
is  bound  by  all  proceedings  taken  in  the  action  after  the  filing  of 
the  notice,  to  the  same  extent  as  if  he  were  a  party  to  the  action. 


596  NOTICE   OF   PENDENCY    OF   ACTION. 


Art.  2.      Effect  of  Notice  of  Pendency. 


Fuller  V.  Scribner,  76  N.  Y.  190 ;  Kindberg  v.  Freeman,  39  Hun, 
466.     The  rule  is  applied  in  Powell  \.  Jenkins,  14  Misc.  85. 

The  provisions  of  §  1 671,  to  the  effect  that  a  person  whose  con- 
veyance or  incumbrance  is  executed  or  recorded  after  the  filing  of 
the  complaint  and  the  notice  of  pendency  of  the  action,  shall  be 
bound  by  any  proceedings  taken  thereafter  in  the  action  as  if  a 
party,  includes  only  cases  where  no  more  has  been  done  than  the 
making  and  delivery  of  the  conveyance  or  incumbrance,  and  not 
to  a  case  where  the  purchaser  or  incumbrancer  has,  in  fact,  prior  to 
the  filing  of  the  notice  of  pendency,  become  possessed  of  the 
premises.  Such  possession  is  notice  as  complete  as  recording  of 
the  instrument  itself  could  be  as  to  all  persons  dealing  with  or 
proceeding  against  the  party.  Welch  v.  Schoen,  59  Hun,  356,  S. 
C.  36  St.  Rep.  539. 

It  was  contemplated  by  the  provisions  of  the  Code  of  Procedure, 
in  reference  to  filing  lis  pendens,  that  those  whose  conveyances  or 
incumbrances  appeared  by  the  record  should  be  made  parties  in 
order  to  charge  with  the  result  of  the  action  those  holding  under 
or  through  them  not  made  parties,  whose  interests  do  not  so  ap- 
pear at  the  time  of  such  filing.  It  seems  a  judgment  in  fore- 
closure is  effectual  to  bar  the  right  of  redemption  of  grantee  not 
made  a  party  whose  deed  was  subsequent  to  the  mortgage  and 
prior  to  the  commencement  of  foreclosure  suit,  but  was  not  re- 
corded until  after  the  filing  of  the  notice  of  pendency,  at  least 
where  the  plaintiff  in  such  action  had  no  actual  notice  at  the  time 
of  its  commencement  of  such  unrecorded  deed.  Kurshcedt  v- 
Union  Dime  Savings  Inst.  118  N.  Y.  358. 

A  purchaser  of  land  who  takes  a  conveyance  pending  an  action 
of  trespass  between  the  grantor  and  another,  in  which  issue  of  title 
has  been  made,  is  not  concluded  by  a  subsequent  judgment  in 
that  action.  It  seems  the  doctrine  of  lis  pendens,  either  under  the 
Code  or  at  common  law,  does  not  apply  to  such  an  action,  as  it  is 
not  brought  to  procure  a  judgment  affecting  the  title  or  possession 
of  the  land,  although  they  may  in  certain  cases  be  affected  thereby, 
and  a  grantee  of  a  party  acquires  no  interest  by  his  deed  in  the 
subject-matter  of  the  pending  litigaton.  Hailey  v.  Ano,  136 
N.  Y.  569.  As  to  whether  a  substituted  service  of  a  summons  is 
equivalent  to  a  personal  service  under  §  1670,  see  Ferris  v.  Plum- 
mer,  46  Hun,  515,  12  St.  Rep.  652.  A  lis  pendens  filed  in  an 
action  for  specific  performance  of  an  agreement  to  sell  land,  the 


NOTICE   OF   PENDENCY   OF   ACTION.  597 

Art.  2.     Effect  of  Notice  of  Pendency. 

complaint  in  which  expressly  excludes  certain  premises,  is  no 
notice  to  one  who  takes  a  mortgage  pending  the  action,  and  his 
rights  are  not  affected  by  their  subsequent  inclusion  in  the  judg- 
ment and  sale  by  subsequent  parties  to  such  action.  Oliphant 
V.  Btirnes,  146  N.  Y.  218,  40  N.  E.  Rep.  980,  66  St.  Rep.  594. 

A  lis  pendens  filed  in  an  action  to  obtain  an  adjudication  that 
certain  real  estate  is  .subject  to  easements,  operates  to  render 
mortgages  taken  pending  the  action  subject  to  the  conditions 
contained  in  the  judgment,  but  does  not  make  the  costs  recovered 
in  such  action  a  lien  prior  to  such  mortgages.  Crocker  v.  Lezvis, 
79  Hun,  400,  61  St.  Rep.  503,  29  Supp.  798.  Omission  to  file  a 
lis  pendens  affords  no  defence  to  the  parties  in  an  action  on  a 
bond  given  to  discharge  a  mechanic's  lien,  since  they  have  actual 
notice.  Sheffield  v.  Robinson,  73  Hun,  173;  Sheffield  v.  Early, 
57  St.  Rep.  146,  25  Supp.  1098.  It  seems  that  in  proceedings 
upon  a  reference  of  a  claim  against  a  decedent,  a  notice  of  pen- 
dency of  action  may  be  filed  for  the  purpose  of  preserving  the 
right  to  recourse  against  the  decedent's  land,  upon  the  establish- 
ment of  the  plaintiff's  claim.  Matter  of  Bingham,  127  N.  Y.  296; 
Matter  of  Brighani,  38  St.  Rep.  765. 

In  an  action  against  an  elevated  railroad  where  the  plaintiff 
conveyed  the  fee  during  the  action,  but  his  grantees  refused  to 
grant  a  release,  requiring  as  a  condition  the  payment  of  a  suitable 
sum,  it  was  held,  that  the  grantees  of  the  plaintiff  were  as  much 
bound  by  judgment  as  though  they  had  been  parties  to  the 
action,  the  pendency  of  the  action  being  in  the  nature  of  a  lis 
pendens.     Moss  v.  N.   V.  Elevated  Ry.  Co.  27  Abb.  318. 

The  note  to  this  case  refers  to  the  rule  laid  down  in  2  Abb.  N.  Pr. 
and  Forms,  19,  to  the  effect  that  a  lis  pendens  does  not  create  a 
lien  but  restricts  it,  merely  providing  that  any  purchaser  of  a 
defendant  shall  be  bound  unless  he  became  such  by  record  after 
the  time  of  due  filing.  The  omission  of  the  case  of  a  purchaser 
from  the  plaintiff  leaves  such  a  purchaser  under  the  judicial  rule 
and  he  is  bound  by  the  mere  pendency  of  the  suit.  No  author- 
ity is  cited,  however,  but  a  reference  is  made  to  a  dictum  to  the 
contrary. 

It  was  a  general  rule  that,  independent  of  statutory  provisions, 
a  purchaser  of  real  estate,  pending  a  suit  affected  by  it,  was  bound 
by  the  decree,  and  that  the  suit  itself  was  constructive  notice; 
consequently  any   rights  acquired   in   land   after  the  commence- 


59^  NOTICE   OF   PENDENCY    OF   ACTION. 

Art.  3.     When  Notice  of  Pendency  Cancelled. 

merit  of  an  action  affecting  the  title  were  subordinate  to  those  of 
the  plaintiff  in  such  action,  and  this  although  the  purchaser  might 
never  have  heard  of  the  suit.  Murray  v.  Ballon,  i  Johns.  Ch. 
566,  cited  Gerard's  Titles  to  Real  Estate,  4th  ed.,  874. 

ARTICLE    III. 
When   Notice  of  Pendency  Cancelled.    §  1674. 

§  1674.   [Am'd,   1892.]     When  and  how  notice  may  be  cancelled. 

After  the  action  is  settled,  discontinued,  or  abated,  or  final  judgment  is  ren- 
dered therein  against  the  party  filing  the  notice,  and  the  time  to  appeal  there- 
from has  expired,  or  if  a  plaintiff  filing  the  notice  unreasonably  neglects  to  pro- 
ceed in  the  action,  the  court  may,  in  its  discretion,  upon  the  application  of  any 
person  aggrieved,  and  upon  such  notice  as  may  be  directed  or  approved  by  it, 
direct  that  a  notice  of  the  pendency  of  an  action,  filed  as  prescribed  in  the  last 
four  sections,  be  cancelled  of  record  by  a  particular  clerk,  or  by  all  the  clerks, 
with  whom  it  is  filed  and  recorded.  The  cancellation  must  be  made  by  a  note  to 
that  effect,  on  the  margin  of  the  record,  referring  to  the  order.  Unless  the  order 
is  entered  in  the  same  clerk's  office,  a  certified  copy  thereof  must  be  filed  therein, 
before  the  notice  is  cancelled.  In  a  judgment  creditor's  action,  the  court  may, 
at  any  stage  of  the  proceeding,  upon  notice  to  the  plaintiff  or  to  the  judgment 
creditor  to  be  affected  thereby,  direct  that  a  notice  of  the  pendency  thereof  be 
cancelled,  upon  payment  into  court  of  the  amount  of  the  judgment  or  judgments 
sought  to  be  enforced  in  such  action,  together  with  the  accrued  interest  and  such 
sum  in  addition  thereto  as  the  court  may  deem  sufficient  to  cover  interest  likely 
to  accrue  during  the  pendency  of  the  action  and  costs.  Or,  in  lieu  thereof,  the 
court  may,  in  its  discretion,  order  that  an  undertaking  be  given  in  a  sum  double 
the  amount  of  the  judgment  or  judgments  sought  to  be  enforced,  with  two  suffi- 
cient sureties  to  be  approved  by  the  court  or  a  judge  thereof,  conditioned  that 
the  defendant  or  defendants  applying  therefor  will  pay  the  judgment  or  judg- 
ments sought  to  be  enforced  against  said  property,  with  interest  and  costs  in  the 
event  that  a  final  judgment  shall  be  entered  in  such  judgment  creditor's  action 
in  favor  of  the  judgment  creditor  or  creditors  to  the  effect  that  such  real  estate 
was,  at  the  time  of  the  filing  of  said  notices  of  pendency  of  action,  equitably 
chargeable  therewith.  A  copy  of  said  undertaking,  with  notice  of  the  filing  of 
the  same,  shall  be  served  upon  the  attorney  for  the  judgment  creditor,  and 
notice  of  not  less  than  two  days  of  the  justification  of  the  sureties.  Upon  the 
approval  of  such  undertaking  by  the  court  or  a  judge  thereof,  the  court  may  di- 
rect that  the  notice  of  pendency  of  action  be  canceled  of  record,  in  the  manner 
above  provided.  Where  a  judgment  creditor's  action  is  brought  by  the  plaintiff 
as  well  on  his  own  behalf  as  on  behalf  of  such  other  creditors  as  may  come  in 
and  contribute  to  the  expense  of  such  action,  notice  of  the  application  to  cancel 
such  lis  pendens  shall  be  given,  as  well  to  the  plaintiff  as  to  such  other  judgment 
creditors  as  shall,  before  the  service  of  the  notice  of  motion  or  order  to  show 
cause,  have  served  upon  the  attorney  appearing  for  the  defendant  in  whose  name 
the  title  shall  stand  at  the  time  of  the  commencement  of  the  action,  a  notice  to 
the  effect  that  such  judgment  creditor  elects  to  come  in  and  contribute  to  the  ex- 
penses of  such  action,  which  notice  shall  also  describe  the  judgment  by  giving 


\ 


NOTICE   OF   PENDENCY    OF   ACTION.  599 


Art.  3.     When  Notice  of  Pendency  Cancelled. 


the  name  of  the  court  in  which  it  was  recovered,  such  recovery  and  the  amount 
thereof,  and  shall  be  accompanied  by  an  affidavit  of  the  judgment  creditor  or  his 
attorney  to  the  effect  that  such  judgment  has  been  duly  docketed,  giving  the 
date  and  place  of  such  docket,  and  that  an  execution  has  been  issued  thereon  to 
the  sheriff  of  the  proper  county  and  has  been  returned  unsatisfied,  and  the 
amount  claimed  to  be  due  thereon.  In  such  case  the  court  shall  provide  for  like 
deposit  or  like  security,  as  the  case  may  be,  for  the  benefit  of  the  judgment 
creditor  giving  such  notice  before  the  cancellation  of  such  notice  of  pendency  of 
action. 

The  right  to  file  a  lis  pendens  being  an  absolute  right  not 
depending  on  the  discretion  of  the  court,  the  court  can  only 
order  a  notice,  once  filed  in  a  proper  action,  canceled  when  the 
action  shall  be  discontinued,  settled,  or  abated,  or  final  judgment 
rendered  against  the  party  filing  the  notice,  and  the  time  to 
appeal  expired  or  the  party  unreasonably  neglecting  to  proceed. 
Niebiihr  v.  Sehrcyer,  10  Civ.  Pro.  R.  72,  affirmed,  i  St.  Rep. 
626;  Willis  V.  Bellamy,  11  Civ.  Pro.  R.  104;  Pratt  v.  Hoag,  12 
Plow.  215;  Wilmont  V.  Meserole,  41  Supr.  Ct.  274;  Shepherd  v. 
Treadwell,  and  Matter  of  Barmim,  cited  Abb.  Ann.  Dig.  1884, 
page  243 ;  Parks  v.  Murray,  2  St.  Rep.  135  ;  Brainerd  v.  White, 
48  Supr.  Ct.  399. 

The  method  of  canceling  notice  is  provided  for  by  §  1674,  and 
it  can  only  be  canceled  under  the  terms  of  the  statute ;  Mills  v. 
Bliss,  55  N.  Y.  139;  unless  filed  in  an  action  where  not  author- 
ized. Wilmont  v.  Meserole,  41  Supr.  Ct.  274.  Plaintiff  must  prose- 
cute the  action  diligently.  Myriek  v.  Selden,  36  Barb.  1 5  ;  Sheri- 
dan v.  Andrews,  49  N.  Y.  478.  See  §  1670.  Where  the  defendant 
properly  filed  lis  pendens  under  §  1673  a  motion  to  cancel  it  may 
be  denied.  Niehuhr  v.  Schreyer,  i  St.  Rep.  626.  A  notice  of 
pendency  cannot  be  canceled  on  judgment  recovered  in  favor  of 
defendant  until  the  time  to  appeal  has  expired.  Parks  v.  Mur- 
ray, 2  St.  Rep.  135. 

Nor  can  a  notice  duly  filed  be  canceled  on  the  ground  that 
plaintiff  has  not  a  good  cause  of  action,  if  the  complaint  be  one 
on  which  he  would  be  entitled  to  relief  on  default  as  affecting  real 
property.  Brainerd  v.  White,  12  Abb.  N.  C.  407-  A  right  to 
file  lis  pendens  being  statutory,  the  provisions  of  the  statute  must 
be  strictly  followed  and  a  motion  to  cancel  is  properly  denied 
where  this  section  does  not  authorize  its  cancelation.  Willis  v. 
Bellamy,  53  Supr.  94;  s.  c.  1 1  Civ.  Pro.  R.  104. 

Where  the  complaint  was  dismissed  in  an  action  in  which  a  lis 


60O  NOTICE   OF   PENDENCY    OF   ACTION. 


Art.  3.     When  Notice  of  Pendency  Cancelled. 


pendcjis  had  been  filed,  and  a  plaintiff  unreasonably  refused  to 
take  an  appeal,  it  was  held  from  the  facts  that  it  was  evident  the 
sole  object  of  plaintiff  in  filing  his  notice  was  to  harass  and 
annoy  defendant  and  tie  up  his  property,  and  that  the  neglect 
to  appeal  was  unreasonable.  That  he  was  brought  within  the 
provisions  of  this  section.  As  to  the  requirement  that  plaintiff 
must  proceed  diligently,  see  VVagJier  v.  Perry,  51  Hun,  199;  S.  C. 
21  St.  Rep.  386;  SJieridan  v.  Andrews,  49  N.  Y.  478;  Myrick  v. 
Selden,  36  Barb.  15. 

In  an  action  to  foreclose  a  mechanic's  lien  upon  application  for 
the  discharge  of  the  liens  involved  in  the  action,  upon  making  a 
deposit,  an  order  was  made  fixing  the  amount  of  deposit  at  a 
sum  sufificient  only  to  meet  the  plaintiff's  lien,  and  directing  that 
upon  the  deposit  being  made  the  liens  of  the  plaintiff  and  of  the 
defendant  who  had  made  default  and  had  not  appeared  at  the 
hearing,  should  be  discharged  and  the  lis  pendens  cease  to  be  a 
lien  or  incumbrance;  this  was  held  error,  that  the  court  had  no 
power  to  make  such  an  order,  since  the  notice  can  only  be  can- 
celed in  the  cases  in  which  the  statute  authorizes  it.  Fischer  v. 
Hussy,  II  Misc.  529,  c'ltmg  Beaman  v.   Todd,  124  N.  Y.  114. 

The  right  to  file  a  notice  of  pendency  of  action  is  an  absolute 
right,  not  resting  in  the  discretion  of  the  court,  and  if  the  notice 
is  properly  filed  it  may  not  be  canceled  except  in  accordance  with 
§  1674,  and  the  owner  of  the  premises  has  given  an  undertaking  in 
discharge  of  a  mechanic's  lien,  is  not  entitled  to  the  cancellation 
of  the  notice  of  lis  pendens  filed  in  an  action  to  foreclose  lien. 
Murray  v.  Bartli,  30  Abb.  N.  C.  303.  A  delay  by  the  plaintiff 
for  more  than  a  year  in  taking  an  appeal  is  an  unreasonable 
neglect  within  §  1674.      Townsendv.  Work,  29  Supp.  791. 

The  court  cannot  cancel  a  lis  pendens  where  the  judgment  has 
been  recovered  in  favor  of  defendant  until  after  time  to  appeal 
has  expired,  but  generally  an  order  of  cancelation  is  properly 
made  when  the  application  shows  a  judgment  of  dismissal  volun- 
tarily entered  by  plaintiff,  an  affirmance  of  the  judgment  and 
prejudice  to  defendant  arising  from  the  continuance  of  the  notice 
uncancelled.  Lennon  v.  Stiles,  9  Supp.  358,  31  St.  Rep.  115. 
A  person  not  a  party  to  an  action  who  owned  the  property 
covered  by  a  lis  pendens,  but  conveyed  it  pending  the  action, 
has  no  standing  to  move  to  discharge  the  lis  pendents  from  record. 
Walters  v.  Kraemer,  17  Supp.  659. 


CHAPTER  XI. 

JUDGMENT  FOR  AND  SALE  OF  REAL  ESTATE. 

rA(;E. 
Article  I.   Judgment  for  sale,  where  to  be  entered.     Sec.  1677.  601 

2.  Sale,  how  advertised  and  conducted.     Sees.    1678, 

1679.     Rules  79,  61,  62,  67 601 

3.  Referee's  fees  and  expenses  and  disposition  of  pro- 

ceeds.    Sec.  1676 621 

4.  Report  of  sale  and  order  of  confirmation.     Rule  30, 

in  part 626 

5.  Resale,  when  ordered 632 

6.  Rights  of  purchasers  and  when  sale  enforced 641 

7.  Payment  of  moneys  arising  from  sale  into  court, 

and  how  paid  out.      Rules  68,  69 648 

8.  Passing  title  and  writ  of  assistance.     Sec.  1675...,    ^5° 

9.  Effect  of  judicial  sale 659 

Sections  of  the   code   of    Procedure   and   Where   Found   in 

THIS  Chapter: 

SEC.  ART.   PAGE. 

1675.  When  and  how  court  may  compel  delivery  of  possession  of  real 

property  to  purchaser 8  650 

1676.  Upon  sale  of  real  property,  officer  to  pay  taxes,  etc 3  624 

1677.  Judgment  to  be  entered  in  county  where  real  property  is  situated.  i  601 

1678.  Sale;  notice  of;  how  conducted 2  603 

1679.  Purchases  by  certain  officers  prohibited.     Penalty 2  620 

ARTICLE    L 

Judgment  for  Sale,  Where  to  be  Entered.    §  1677. 

§  1677.  Judgment  to  be  entered  in  county  where  real  property  is  situated. 
Where  real  property,  sold  by  virtue  of  a  judgment,  rendered  in  an  action 
specified  in  the  last  section,  is  situated  in  a  county,  other  than  that  in  which  the 
judgment  is  entered,  the  judgment  must  be  also  entered  in  the  office  of  the 
clerk  of  the  county  wherein  the  property  is  situated,  before  the  purchaser 
can  be  required  to  pay  the  purchase-money,  or  to  accept  a  deed.  The  clerk  of 
the  latter  county  must  enter  it  in  the  judgment-book  kept  by  him,  upon  filing 
with  him  a  notice  thereof,  certified  by  the  clerk  with  whom  it  is  entered. 

ARTICLE    II. 

Sale,  how  Advertised  and  Conducted.     §   1678,  1679. 

Rules  79,  61,  62,  6^. 

Sub.  I.  The  referee.     Rules  79,  61. 

2.  Advertising  and  conducting  sale.     Sec.  1678.     Rules  62,  67. 

3.  Sale,  when  made  in  parcels. 

[601] 


6o2  JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE. 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

Sub.  4.   Inverse  order  of  alienation. 

5.  Trustee  not  to  purchase.     Sec.  1679. 

Sub.  I.   The  Referee. 

Rule  79.  Who  may  be  referee. 

Except  in  cases  provided  for  by  section  loii  of  the  Code  of  Civil  Procedure, 
no  person,  unless  he  is  an  attorney  of  the  court  in  good  standing,  shall  be 
appointed  sole  referee  for  any  purpose  in  any  pending  action  or  proceeding. 
Nor  shall  any  person  be  appointed  a  referee  who  is  the  partner  or  clerk  of  the 
attorney,  or  counsel,  of  the  party  in  whose  behaif  such  application  for  such 
appointment  is  made,  or  who  is  in  any. way  connected  in  business  with  such 
attorney  or  counsel,  or  who  occupies  the  same  office  with  such  attorney  or 
counseL 

Rule  61.  [Last  sentence.]  Selection  of  referee. 

"  The  referee  to  be  appointed  in  foreclosure  cases,  to  compute  the  amount  due 
or  to  sell  mortgaged  premises,  shall  be  selected  by  the  couit  and  the  court  shall 
not  appoint  as  such  referee  a  person  nominated  by  the  party  to  the  action  or  his 
counsel." 

The  court  cannot  appoint,  as  referee  to  sell,  the  notary  before 
whom  the  afifidavit,  on  which  the  application  for  a  reference  was 
based,  is  verified.      Steivart  v.  Bogart,  2  Law  Bull.  94. 

Section  1243  provides,  where  a  referee  is  appointed  by  the 
court  to  sell  real  property,  the  court  may  provide  for  his  giving 
such  security  as  the  court  deems  just,  for  the  proper  application 
of  the  money  received  upon  the  sale ;  or  for  the  payment  thereof 
by  the  purchaser  directly  to  the  person  or  persons  entitled 
thereto,  or  their  attorneys. 

The  duties  of  a  referee  appointed  to  sell  are  purely  ministerial 
and  he  cannot  vary  the  judgment  in  prescribing  the  terms  of  sale. 
GDonnell  v.  Lindsay,  39  N.  Y.  Supr.  523;  People  v.  Bergen, 
53  N.  Y.  404,  15  Abb.  (N.  S.)  97.  If  he  neglects  to  proceed 
with  reasonable  speed,  the  court  will  give  further  directions  on 
application  of  any  person  interested.  Kelly  v.  Israel,  1 1  Paige 
Ch.  147. 

An  officer  making  the  sale  should  announce  the  terms  of  sale, 
offer  the  premises  to  the  highest  bidder,  giving  a  fair  opportunity 
to  other  persons  to  bid,  and  after  making  the  sale  require  the 
purchaser  to  sign  a  memorandum  agreeing  to  complete  the  same ; 
he  is  also  to  use  his  discretion,  if  there  are  no  bidders  or  other 
sufficient  cause,  to  postpone  the  sale  and  not  sacrifice  the  prop- 
erty unnecessarily.     Bicknellv.  Byrnes,  23  How.  486. 

Where,  after  sale  and  before  conveyance,  the  parties  settle  and 
purchaser  waives  his  purchase,  the  referee  is  obliged  to  return  to 


JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE.  603 


Art.  2.     Sale,  how  Advertised  and  Conducted. 


the  purchaser  the  payment  made  and  cannot  retain  any  part  thereof 
on  account  of  his  costs  and  disbursements.  Fearing  v.  Cornish, 
10  Civ.  Pro.  R.  -jj-^  but  in  Allen  v.  Williamson,  21  Abb.  N.  C. 
391,  it  is  held  that  the  referee  to  sell  is  entitled  to  his  expenses, 
and  that  neither  the  .satisfaction  of  the  mortgage  or  of  the  judg- 
ment can  affect  that  right.  A  referee  is  not  authorized  to  .sell 
premises  under  a  second  mortgage  free  and  clear  of  incumbrances 
when  the  decree  does  not  so  direct  and  the  mortgagee  is  not  a 
party  to  the  action.      GnggcnJieimcr  v.  Sayre,  21  St.  Rep.  255. 

A  referee  has  no  power,  without  authority  from  the  court,  to 
correct  an  erroneous  description  of  the  premises  sold  by  him. 
Heller  v.  Cohen,  15  Misc.  378,  36  N.  Y.  Supp.  668. 

Sub.  2.  Advertising  and  Conducting  Sale.   §  1678.   Rules  62,67. 

§  1678,   [Am'd,  1894,  1896. j     Sale  ;  notice  of ;  how  conducted. 

A  sale  made  in  pursuance  of  any  provision  of  this  title,  must  be  at  public 
auction  to  the  highest  bidder.  Notice  of  such  sale  must  be  given  by  the  officer 
making  it,  as  prescribed  in  section  fourteen  hundred  and  thirty-four  of  this  act 
for  the  sale  by  a  sheriff  of  real  property,  by  virtue  of  an  execution,  unless  the 
property  is  situated  wholly  or  partly  in  a  city  in  which  a  daily  newspaper  is  pub- 
lished, and,  in  that  case,  by  publishing  notice  of  the  sale  in  such  a  daily  paper, 
at  least  twice  in  each  week  for  three  successive  weeks,  or  in  a  weekly  paper  pub- 
lished in  a  city,  once  in  each  of  the  six  weeks  immediately  preceding  the  sale, 
or  in  the  city  of  New  York  or  the  city  of  Brooklyn,  in  two  such  daily  papers.  If 
the  officer  appointed  to  make  such  sale  does  not  appear  at  the  time  and  place 
where  such  sale  has  been  advertised  to  take  place,  then  in  that  case  the  attorney 
for  the  plaintiff  may  postpone  or  adjourn  such  sale,  not  to  exceed  four  weeks, 
during  which  time  such  attorney  may  make  application  to  the  court  to  have 
another  person  appointed  to  make  such  sale.  Notice  of  the  postponement  of  the 
sale  must  be  published  in  the  paper  or  papers  wherein  die  notice  of  sale  was 
published.  The  terms  of  the  sale  must  be  made  known  at  the  sale,  and  if  the 
property,  or  any  part  thereof,  is  to  be  sold  subject  to  the  right  of  dower,  charge 
or  lien,  that  fact  must  be  declared  at  the  time  of  the  sale.  If  the  property  con, 
sists  of  two  or  more  distinct  buildings,  farms  or  lots  they  shall  be  sold  separately, 
unlefs  otherwise  ordered  by  the  court;  and  provided,  further,  that  where  two  or 
more  buildings  are  situated  on  the  same  city  lot,  they  be  sold  together. 

§1384.   I  Am'd,  1894. J     Sale  on  execution,  etc.:  when  and  how  conducted. 

A  sale  of  real  or  personal  property,  by  virtue  of  an  execution,  or  pursuant  to 
the  directions  contained  in  a  judgment  or  order,  must  be  made  at  public  auction, 
between  the  hour  of  nine  o'clock  in  the  morning  and  sunset.  The  sheriff  to 
whom  an  execution  is  issued  shall  at  any  time  before  the  sale  of  the  personal 
property  levied  on  by  him,  on  the  written  request  of  any  person  who  is  a  creditor 
of  the  person  against  whom  the  writ  was  issued  under  which  the  sheriff  levied 
upon  the  property,  exhibit  to  such  creditor  the  personal  property  so  levied  upon 
under  said  writ  and  permit  an  inspection  thereof  by  such  creditor  or  his  agent. 


6o4  JUDGMENT    FOR   AND   SALE    OF   REAL   ESTATE. 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

§  1434.  [Am'd,  1896. J     Notice  of  sale  of  real  property;  how  given. 

The  sheriff  who  sells  real  property,  by  virtue  of  an  execution,  must  previously 
give  public  notice  of  the  time  and  place  of  the  sale,  as  follows: 

1.  A  written  or  printed  notice  thereof  must  be  conspicuously  fastened  up,  at 
least  forty-two  days  before  the  sale,  in  three  public  places,  in  the  town  or  city 
where  the  sale  is  to  take  place,  and  also  in  three  public  places,  in  the  town  or 
city  where  the  property  is  situated,  if  the  sale  is  to  take  place  in  another  town 
or  city. 

2.  A  copy  of  the  notice  must  be  published,  at  least  once  in  each  of  the  six 
weeks  immediately  preceding  the  sale,  in  a  newspaper  published  in  the  county, 
or  published  in  an  incorporated  village,  a  part  of  which  is  within  the  county;  if 
there  is  a  newspaper  published  in  such  county  or  village;  or,  if  there  is  none,  in 
the  newspaper  printed  at  Albany,  in  which  legal  notices  are  required  to  be 
published. 

Rule  62.  Sale  of  lands  in  the  cities  of  Newr  York,  Brooklyn  and  Buffalo  under 
judgment  or  order. 

Where  lands  in  the  city  of  New  York  or  Brooklyn  are  sold  under  a  decree,  or- 
der or  judgment  of  any  court,  they  shall  be  sold  at  public  auction,  between 
twelve  o'clock  at  noon  and  three  in  the  afternoon,  unless  otherwise  specially 
directed. 

Notice  of  such  sale  must  be  given,  and  the  sale  must  be  had,  as  prescribed  in 
section  167S  of  the  Code. 

Such  sales  in  the  city  of  New  York,  unless  otherwise  specially  directed,  shall 
take  place  at  the  Exchange  Sales  Room,  now  located  at  No.  iii  Broadway,  in 
said  city. 

The  Appellate  Division  of  the  Supreme  Court  in  the  first  department  is  author- 
ized to  change  the  place  at  which  such  sales  shall  be  made,  may  make  rules  and 
regulations  in  relation  thereto,  and  may  designate  the  auctioneers  or  persons 
who  shall  make  the  same. 

Such  sales  in  the  city  of  Buffalo  shall,  on  and  after  May  i,  1896,  take  place  at 
the  Real  Estate  Exchange  Rooms,  between  the  hours  of  nine  and  eleven  in  the 
forenoon,  and  two  and  three  o'clock  in  the  afternoon,  unless  the  court  ordering 
the  sales  shall  otherwise  direct.  Such  sales  shall,  however,  be  made  subject  to 
such  regulations  as  the  justices  of  the  Supreme  Court  of  the  eighth  district  shall 
establish. 

Riile  67.  Stay  of  sale  in  partition  or  foreclosure ;  notice. 

No  order  to  stay  a  sale  under  judgment  in  partition  or  for  the  foreclosure  of  a 
mortgage  shall  be  granted  or  made  by  a  judge  out  of  court,  except  upon  a 
notice  of  at  least  two  days  to  the  plaintiff's  attorney. 

Real  property  adjudged  to  be  sold  must,  by  the  terms  of 
§  1242,  be  sold  in  the  county  where  it  is  situated,  by  the  sheriff 
of  the  county,  or  by  a  referee  appointed  by  the  court  for  that 
purpose,  who  must  execute  a  conveyance  to  the  purchaser.  By 
§  1 546  sale  in  partition  is  provided  for  and  provision  made  for 
interlocutory  judgment  therefor;  and  by  §  1560  provision  is 
made  for  a  sale  after  interlocutory  judgment  on  commissioners' 


JUDGMENT   FOR  AND   SALE   OF   REAL   ESTATE.  60$ 


Art.  2.     Sale,  how  Advertised  and  Conducted. 


report.  Section  1622  provides  for  sale  in  action  of  foreclosure, 
§  1656  in  action  for  waste.  A  notice  of  sale  under  a  judgment  of 
foreclosure  for  the  28th  day  of  December,  duly  published  on  the 
9th,  I2th,  i6th,  19th,  23d,  and  26th  of  that  month,  is  a  publica- 
tion for  three  weeks  immediately  previous  to  the  time  of  sale,  at 
least  twice  in  each  week.  Charnbcrlain  v.  Dcmpscy,  22  How.  356. 
Where  the  publication  is  to  be  made  for  three  weeks,  twice  in 
each  week,  it  is  not  necessary  that  twenty-one  days  shall  elapse 
between  the  time  of  the  first  publication  and  the  sale ;  and  where 
it  is  to  be  made  once  in  each  week  for  six  weeks,  the  full  space  of 
six  weeks  need  not  elapse  from  the  first  publication  before  a  sale 
can  be  made.  If,  in  the  one  case,  a  notice  is  inserted  twice  in 
each  week  for  three  weeks,  and  in  the  other  case  once  in  each 
week  for  six  weeks,  the  statute  is  complied  with.  Sheldon  v. 
Wright,  5  N.  Y.  497;  Olcott  v.  Robinson,  21  N.  Y.  150;  Wood  v. 
Morehouse,  45  N.  Y,  368.  The  same  rule  is  held  in  Valentine  v. 
McCiie,  26  Hun,  456,  which  holds,  further,  that  the  court  has 
power  to  amend  the  notice  of  sale  while  being  published,  and  the 
sale  will  not  thereby  be  rendered  invalid  ;  also,  where  the  sale  was 
directed  to  be  advertised  for  three  weeks  instead  of  six  weeks, 
Jicld,  that  error  might  be  amended.  Alvordv.  Beach,  5  Abb.  451. 
A  week  is  a  definite  period  of  time,  commencing  on  Sunday  and 
ending  on  Saturday.  Steinle  v.  Bell,  12  Abb.  (N.  S.)  171.  It 
seems  no  notice  of  sale  is  require  to  be  served  on  a  defendant. 
This,  presumably,  relates  to  one  in  default  and  who  has  not 
appeared  by  attorney.  Gallup  v.  Miller,  25  Hun,  298.  Publica- 
tion of  notice  of  sale  need  not  be  made  in  all  the  editions  of  the 
paper  issued  on  the  day  of  its  insertion.  Everson  v.  JoJinson,  22 
Hun,  115;  Guest  v.  City  of  Brooklyn,  9  Hun,  198.  The  notice 
of  sale  need  not  say  that  the  sale  will  be  in  parcels,  though  the 
decree  directs  a  sale  in  parcels.  Hoffman  v.  Burke,  21  Hun,  580. 
The  notice  should  contain  nothing  calculated  to  either  mislead 
the  purchaser  or  injure  the  sale.  Vceder  v.  Fonda,  3  Paige,  94; 
Marsh  v.  Ridgway,  18  Abb.  262.  It  is  proper  that  the  title  of  the 
action  should  be  set  out  in  the  notice  of  sale,  but  not  necessar}\ 
Ray  V.  Oliver,  6  Paige,  489.  The  title  of  a  purchaser  in  good 
faith  will  not  be  affected  by  failure  to  properly  post  and  publish 
notices,  and  no  irregularity  will  be  presumed  as  against  the  per- 
formance of  that  duty.  Clutev.  Emmerich,  21  Hun,  128;  Wood 
V.  Morehouse,  45  N,  Y.  368.     Nor   is  publication   of  a  notice  of 


6o6  JUDGMENT   FOR   AND    SALE    OF   REAL   ESTATE. 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

adjournment  necessary.     Stcay-ns  v.   JVelsch,  y  Hun,  676;  Bcsch- 
stein  V.  ScJinltrj,  120  N.  Y.  168. 

The  period  of  a  week  is  seven  full  days,  and  when  a  publication 
is  directed  to  be  made  twice  a  week  for  three  weeks,  it  means  that 
there  shall  be  a  period  of  twenty-one  days  before  the  sale  calcu- 
lated by  weeks,  during  each  of  which  two  publications  shall  be 
made,  and  this  shall  occur  without  regard  to  the  day  of  the  week 
when  the  publication  was  commenced.  Valentine  v.  ATcCuc,  26 
Hun,  456;  Hackley  v.  Draper,  4  T.  &  C.  614;  Mcrritt  v.  Village 
of  Portchester,  8  Hun,  40;  Wood  v.  /"rrrj',  4  Lans.  80;  Steinlev. 
Bell,  12  Abb.  (N.  S.)  171  ;  Sheldon  v.  Wright,  5  N.  Y.  497;  Olcott 
V.  Robinson,  21  N.  Y.  150;  Market  National  Bank  v.  Pacific  Nat. 
Bank,  89  N.  Y.  397.  It  seems  that  a  court  may  amend  the  judg- 
ment during  publication  of  the  notice  of  sale  without  affecting  the 
validity  of  the  notice.     Everson  v.  Johnson,  22  Hun,  115. 

Where  notice  of  one  of  the  adjournments  of  a  sale  was  not 
published  until  the  day  the  sale  took  place,  when  all  the  adjourn- 
ments were  properly  published,  and  the  report  of  sale  was  con- 
firmed on  notice  to  all  the  parties,  the  omission  to  publish  the 
notice  was  held  to  be  an  irregularity  which  could  be  waived.  The 
sale  was  not  void,  and  as  none  of  the  parties  in  interest  make  com- 
plaint, the  objection  was  not  available  so  as  to  impeach  the  title. 
Beckstein  v.  Shults,  120  N.  Y.  168.  A  tenant  in  common  of  the 
premises  may  buy  for  his  own  benefit.  Streetcr  v.  ScJiultz,  45 
Hun,  406,  affirmed,  'i,']  St.  Rep.  966. 

The  land  to  be  sold  should  be  described  with  reasonable  cer- 
tainty. It  is  proper  to  follow  the  description  given  in  the  decree, 
and  the  referee  is  not  at  liberty  to  insert  any  statement  whereby 
the  value  of  the  property  will  be  enhanced  or  depreciated  or  the 
purchaser  will  be  in  any  way  misled.  Laight  v.  Pell,  i  Edw.  Ch. 
577;  Vceder  v.  Fonda,  3  Paige  Ch.  94;  Marsh  v.  Ridgivay,  18 
Abb.  Pr.  262. 

An  order  to  show  cause,  if  made  by  a  judge  out  of  court,  and 
returnable  in  less  than  two  days,  is  irregular  if  it  contains  a  stay 
of  proceedings  of  sale  in  partition  or  foreclosure.  Asinari  v. 
Volkennifig,  2  Abb.  N.  C.  454.  An  adjournment  was  ordered  on 
proof  that  defendant  would  get  a  loan  to  pay  the  judgment. 
Mutual  Life  Ins.  Co.  v.  Kopper,  i  Law  Bull.  ^6.  Where  a  stay  is 
obtained,  an  advertised  sale  in  foreclosure  may  be  adjourned  to 
see  if  the  sureties  will  justify  if  excepted  to.      Ward  v.  James, 


JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE.  607 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

8  Hun,  526.      A  sale  cannot  be  made  on  credit  except  by  order 
of  the  court.      Scdgivick  v.  FisJi,  Hopk.  594. 

If  no  valid  sale  is  made,  or  if  valid  and  the  party  elects  to  dis- 
regard it,  another  sale  cannot  be  made,  except  by  order  of  the 
court,  without  again  advertising.  Bicknell  v.  Byrnes,  23  How. 
486.  If  a  sale  is  adjourned,  notice  should  be  given  to  those  who 
attend  the  sale,  and  also  published ;  if  none  is  named  at  time  of 
adjournment,  by  reason  of  a  stay,  a  sale  on  the  adjourned  day,  if 
advertised,  will  not  be  irregular.  La  Fargc  v.  Van  Wagcncn,  14 
How.  54.  But  if  a  day  is  named,  it  is  irregular  to  sell  on  any 
other.  Miller  v.  Hull,  4  Den.  104.  Before  the  time  of  sale  there 
should  be  prepared  a  statement  of  the  terms  of  sale,  and  should 
give  the  conditions  of  sale,  statement  of  deductions  to  be  made 
for  assessments,  amount  to  be  paid  down  and  terms  of  payment, 
and  be  attached  to  the  notice  of  sale,  i  Barb.  Ch.  Pr.  527.  And 
if  the  mortgagee  has  such  a  statement  prepared  and  bids  in  the 
property,  he  will  be  estopped  from  disputing  the  terms.  Briiids- 
made  v.  Hurst,  3  Duer,  206.  The  officer  making  the  sale  should 
at  the  time  announce  its  terms,  offer  the  premises  and  receive 
bids  so  long  as  they  are  offered,  and  strike  off  the  premises  to  the 
highest  bidder,  and  require  him  to  sign  a  memorandum  of  the 
purchase  by  him  and  agreement  to  pay  the  balance  of  his  bid. 
If  he  is  satisfied  a  fair  price  cannot  be  obtained  for  the  property,  by 
reason  of  lack  of  bidders  or  other  suf^cient  cause,  he  should 
adjourn  the  sale.  Bicknell  v.  Byrnes,  23  How.  486.  The  memo- 
randum of  sale  by  the  auctioneer  is,  however,  binding  on  the 
purchaser.  National  Fire  Ins.  Co.  v.  Looniis,  11  Paige,  43 1; 
Hcgeman  v.  Johnson,  35  Barb.  200 ;  McComb  v.  Wright,  4  Johns. 
Ch.  659.  But  the  memorandum  must  be  signed  by  the  auc- 
tioneer. Bicknell  v.  Byrnes,  23  How.  486.  If  the  purchaser 
refuses  to  complete  the  sale,  the  biddings  may  be  kept  open  and 
a  resale  made.  Lentz  v.  Craig,  13  How.  72,  2  Abb.  Pr.  294; 
Shcrivood  v.  Reade,  8  Paige,  633.  If,  by  the  terms  of  sale,  the 
money  is  to  be  paid  down  and  the  purchaser  does  not  on  demand 
pay  the  money,  the  referee  should  at  once  proceed  and  offer  the 
premises  again  for  sale.     Bicknell  v.  Byrnes,  23  How.  486. 

A  sale  made  by  a  person  deputed  by  the  officer  authorized  to 
make  the  sale  in  his  absence  would  be  irregular.  Heyer  v. 
Deaves,  2  Johns.  Ch.  154.  Where  a  decree  provides  for  a  sale 
by  the  sheriff,  it  should  be  made  by  the  sheriff  in  office  when  the 


6o8  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

publication  of  the  notice  commenced,  although  he  goes  out  of 
oflfice  before  the  sale  takes  place.  Union  Dime  Savings  Institu- 
tion V.  A?iderson,  19  Hun,  310;  affirmed,  83  N.  Y.  174,  As  to 
regularity  of  sale  by  referee  instead  of  sheriff,  in  Kings  county, 
on  iovQcloswrQ,  see.  Dickerson  v.  Dickey,  76  N.  Y.  602.  An  agree- 
ment preventing  competition  at  a  public  sale  is  void  as  against 
public  policy,  and  the  court  will  not  interfere  to  aid  the  parties 
to  such  an  agreement.  Wheeler  v,  Wheeler,  5  Lans.  355.  A  sale 
will  be  set  aside  where  persons  have  been  employed  to  bid  up  the 
property  as  against  bona  fide  purchasers.  Fisher  v.  Hersej,  ij 
Hun,  370.  So,  if  underbidding  by  the  owner  or  auctioneer. 
Trust  v.  Delaplaine,  3  E.  D.  Smith,  219. 

If  a  purchaser  does  not  comply  with  the  terms  of  sale,  the 
referee  may  put  the  property  up  for  sale  again,  but  this  must  be 
done  on  such  notice  that  no  one  will  be  misled  by  it.  Lentz  v. 
Craig,  2  Abb.  294.  If  a  purchaser  offers  to  pay  by  check  or 
draft,  and  the  officer  refuses  the  amount  paid,  the  sale  should  be 
held  open  to  allow  the  purchaser  to  comply.  Baring  v.  Moore, 
5  Paige,  48.  If  the  highest  bid  is  withdrawn,  it  is  the  duty  of  the 
officer  making  the  sale  to  put  up  the  premises  at  the  next  lowest 
bid,  and  if  not  taken  at  that,  to  suspend  the  sale.  May  v.  May, 
1 1  Paige,  201 .  It  is  said  to  be  the  duty  of  the  officer  charged  with 
the  sale  to  proceed,  notwithstanding  the  objection  of  plaintiff,  if  any 
of  the  parties  in  interest  require  it.     Kelly  v.  Israel,  ii  Paige,  147. 

If  the  officer  making  the  sale  takes  the  check  of  the  purchaser 
in  lieu  of  cash,  he  will  be  held  responsible  for  the  amount.  Robin- 
son V.  Brennan,  90  N.  Y.  208;  Van  Tassel  v.  Van  Tassel,  31  Barb. 
439.  Where  there  are  prior  incumbrances  not  affected  by  the 
sale  it  must  be  sold  subject  to  them  by  the  terms  of  sale.  Bache 
V.  Doscher,  6"/  N.  Y.  429;  Croimvell  v.  Hall,  97  N.  Y.  209.  So, 
in  case  the  validity  of  a  prior  incumbrance  is  disputed.  Muller  v. 
Muller^  12  Hun,  674.  But  it  is  irregular  to  compel  a  purchaser 
to  take  subject  to  a  junior  mortgage.  HomoeopatJiic  Mutual  Life 
Ins.  Co.  V.  Sixbury,  17  Hun,  424.  A  sale  under  mortgage  prior  to 
an  easement ;  the  sale  must  be  free  from  the  easement,  if  the  owner 
thereof  is  a  party,  as  it  is  cut  off.      Rector  v.  Mack,  93  N.  Y.  488. 

A  provision  in  the  terms  of  sale  that  "all  taxes,  assessments 
and  other  incumbrances  which,  at  the  time  of  the  sale  are  liens 
or  incumbrances  upon  said  premises,  will  be  allowed  by  the 
sheriff  out  of  the  purchase  money,"  will  not  include  a  prior  mort- 


JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE. 


609 


Art.  2.     Sale,  how  Advertised  and  Conducted. 


gage  to  which,  according  to  another  provision,  the  sale  is  made 
subject.     Andrews  V.  O' MaJioiiey,  112  N.  Y.  567. 

Should  a  sale  be  made  before  sunrise  in  the  morning  or  after 
sunset  in  the  evening,  it  will  be  absolutely  void.  Carnick  v. 
Myers,  14  Barb.  9;  Frederick  v.  Wheelock,  3  T.  &  C.  210.  An 
order  of  the  Special  Term  before  the  case  is  ready  for  judgment, 
which  provided  for  additional  advertisements  for  the  sale  of  the 
mortgaged  property  and  for  the  insertion  in  the  judgment  of  a 
provision  to  that  effect,  and  for  a  keeper  of  the  premises,  was 
held  to  have  been  improperly  granted.  East  River  Savings 
Inst.  V.  Biicki,  yj  Hun,  329,  59  St.  Rep.  761,  28  Supp.  325. 

Notice  of  Sale  in  Partition. 

SUPREME  COURT  — Ulster  County. 


Sarah  A.  Kelly 

agst. 

Sarah  Ann  Van  Nostrand,  Mary  Wheeler  and 
George  Wheeler,  her  husband;  Caroline  Lyons 
and  John  Lyons,  her  husband;  Sarah  Hunt  and 
Lorenzo  Hunt,  her  husband;  Annette  Ennist  and 
Alonzo  Ennist,  her  husband;  Frank  Van  Nos- 
trand, Elias  T.  Van  Aiken,  an  infant,  by  Nicholas  !■ 
E.  Brodhead,  his  guardian  ad  litem;  James  E.  ' 
Ostrander,  individually  and  as  administrator  of 
the  goods,  chattels  and  credits  of  Elias  T.  Van 
Nostrand,  deceased,  and  Virginia  E.  Ostrander, 
his  wife;  Alfred  Van  Nostrand,  individually  and 
as  administrator  of  the  goods,  chattels  and  credits 
of  Elias  T.  Van  Nostrand,  deceased,  and  Catha- 
lina  Van  Nostrand,  his  wife,  and  John   B.  Kelly. 


In  pursuance  of  a  judgment  in  the  above  entitled  action  of  par- 
tition, entered  in  the  office  of  the  clerk  of  the  county  of  Ulster,  on 
the  9th  day  of  June,  1888,  I,  the  undersigned  referee,  in  and  by  said 
judgment  for  that  purpose  appointed,  will  sell  at  public  auction,  at  the 
front  door  of  the  court  house  in  the  city  of  Kingston,  Ulster  county, 
New  York,  on  Saturday,  the  7th  day  of  July,  1888,  at  ten  o'clock, 
A.  M.,  the  lands  and  premises  in  said  judgment  directed  to  be  sold 
and  therein  described  as  follows:  (Here  insert  description.) 
Dated  June  9,  1888. 

JOHN  W.   SEARING, 
JAMES  A.    BETTS,  Referee. 

Plaintiff's  Attorneys. 
WILLIAM   T.    HOLT, 

Attorney  for  some  Defendants. 

[Special  Actions  —  39.] 


6lO  JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE. 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

Notice  of  Sale  in  Foreclosure. 

SUPREME  COURT  — Ulster  County. 


V 


THE    ULSTER    COUNTY    SAVINGS    IN- 
STITUTION 

agst. 

GEORGE  W.  BASTEN  and  SARAH  M. 
HASTEN,  HIS  Wife;  EDGAR  H.  BASTEN, 
LOUIS  B.  BASTEN,  JAMES  OLIVER 
AND  SAMUEL  M.  BASTEN. 

Pursuant  to  a  judgment  of  foreclosure  and  sale,  rendered  herein 
on  the  nth  day  of  June,  1888,  and  duly  entered  in  Ulster  county 
clerk's  office  on  the  same  day,  I,  the  undersigned,  the  referee  duly 
appointed  for  such  purpose  by  said  judgment,  will  sell  at  public 
auction,  to  the  highest  bidder,  on  Saturday,  the  28th  day  of  July, 
1888,  at  two  o'clock  in  the  afternoon  of  that  day,  at  the  front  door 
of  the  hotel  of  James  O.  Schoonmaker,  in  the  village  of  Kerhonkson, 
town  of  Wawarsing,  Ulster  county,  N.  Y.,  the  real  estate  directed 
by  said  judgment  to  be  sold,  and  therein  described  as  follows: 
(Here  insert  description.) 

Dated  June  n,  1888.  E.  B.  WALKER,   Jr., 

Referee. 

WM.   S.   KENYON, 

Plaintiff'  Attorney. 

Terms  of  Sale. 


JOHN  H.  DE  PUY 


agst 


ISAAC   GRIFFIN,    DU  BOIS    FLUCIKER 
AND  ADAM  DEYO. 

The  premises  described  in  the  annexed  advertisement  of  sale  will 
be  sold  under  the  direction  of  John  V.  V.  Kenyon,  referee,  upon 
the  following  terms: 

First.  Ten  per  cent  of  the  purchase  money  of  said  premises 
will  be  required  to  be  paid  to  the  said  referee  at  the  time  and  place 
of  sale,  and  for  which  the  referee's  receipt  will  be  given. 

Second.  The  residue  of  said  purchase  money  will  be  required  to 
be  paid  to  the  said  referee  at  his  office,  in  the  city  of  Kingston,  on 
the  14th  day  of  June,  1888,  when  the  said  referee's  deed  will  be 
ready  for  delivery. 

Third.  The  referee  is  not  required  to  send  any  notice  to  the  pur- 
chaser; and  if  he  neglects  to  call,  at  the  time  and  place  above  speci- 


JUDGMENT   FOR  AND   SALE   OF   REAL    ESTATE.  6l  I 


Art.  2.     Sale,  how  Advertised  and  Conducted. 


fied,  to  receive  his  deed,  he  will  be  charged  with  interest  thereafter 
on  the  whole  amount  of  his  purchase,  unless  the  referee  shall  deem 
it  proper  to  extend  the  time  for  the  completion  of  said  purchase. 

Fourth.  AH  taxes,  assessments  and  water-rates,  which,  at  the  time 
of  sale,  are  liens  or  incumbrances  upon  said  premises,  which  have 
not  apparently  become  absolute,  will  be  allowed  by  the  referee  out 
of  the  purchase  money,  provided  the  purchaser  shall,  previously  to 
the  delivery  of  the  deed,  produce  to  the  referee  proof  of  such  liens, 
and  duplicate  receipts  for  the  payment  thereof. 

Fifth.  The  purchaser  of  said  premises,  or  any  portion  thereof, 
will,  at  the  time  and  place  of  sale,  sign  a  memorandum  of  his  pur- 
chase. 

Sixth.  The  biddings  will  be  kept  open  after  the  property  is  struck 
down,  and  in  case  any  purchaser  shall  fail  to  comply  with  any  of  the 
above  conditions  of  sale,  the  premises  so  struck  down  to  him  will  be 
again  put  up  for  sale,  under  the  direction  of  said  referee,  under 
these  same  terms  of  sale,  without  application  to  the  court,  unless  the 
plaintiff's  attorney  shall  elect  to  make  such  application;  and 
such  purchaser  will  be  held  liable  for  any  deficiency  there  may  be 
between  the  sum  for  which  said  premises  shall  be  struck  down  upon 
the  sale  and  that  for  which  they  may  be  purchased  on  the  resale, 
and  also  any  costs  or  expenses  occurring  on  such  resale. 

Dated,  May  14,  1888. 

JOHN  V.  V.   KENYON, 

Referee. 

Memorandum   of  Sale. 

I,  Isaac  Dean,  have,  this  14th  day  of  May,  1888,  purchased  the 
premises  described  in  the  above  annexed  printed  advertisement  of 
sale,  for  the  sum  of  $i,495,  and  hereby  promise  and  agree  to  com- 
ply with  the  terms  and  conditions  of  the  sale  of  said  premises,  as 
above  mentioned  and  set  forth. 

Dated  May  14,  1888. 

ISAAC  DEAN. 

May  14,  1888,  received  from  Isaac  Dean  the  sum  of  $149.50,  being 
ten  per  cent  on  the  amount  bid  by  him  for  property  sold  by  me, 
under  the  judgment  in  the  above-entitled  action. 

$i49-5o-  JOHN  V.   V.   KENYON, 

Referee. 

Sub.   3.   Sale,  When  Made  in  Parcels. 

As  to  the  rule  regardini^  sale  in  parcels  sec  last  clause  of 
§  1678  under  subd.  2,  this  Art.  If  the  property  that  is  exposed 
for  sale  consists  of  two  or  more  lots  or  parcels,  each  lot,  tract  or 
parcel  must  be  separately  exposed  for  sale.  O'Donnellw.  Lind- 
say, 39  Supr.  Ct.  523;  Tngivdl  v.  Bussing,  48  How.  89.  The 
court  may,  in  all  cases,  direct  a  separate  sale  of  distinct  buildings. 


6l2  JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE. 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

houses  and  lots.  Reynolds  v.  Telfair,  5  Law  Bull.  21.  As  to 
sale  of  premises  on  foreclosure  where  only  a  portion  of  the  debt 
is  due,  see  §§  1634-1637.  It  was  held  by  Daly,  J.,  in  Wallace  v. 
Feely,  61  How.  225,  that  the  word  "must,"  which  stood  in  place 
of  "shall"  as  the  section  stood  at  time  of  the  decision,  was  direc- 
tory merely,  and  that  a  foreclosure  sale  of  two  buildings  was  not 
invalidated  because  they  were  sold  together,  and  that  the  ques- 
tion whether  a  sale  in  one  parcel  is  proper  or  not,  must  be 
determined  by  the  circumstances  of  each  case.  The  Revised 
Statutes  used  the  word  "must,"  now  in  the  Code,  and  as  to  this 
Judge  Daly  says:  "The  question  is,  whether  this  provision  is 
directory  merely,  as  the  provisions  of  the  former  statutes,  regu- 
lating judicial  sales,  were  held  to  be  in  Cunningham,  v.  Cassidy, 
17  N.  Y.  276.  That  statute  enacted  that  if  premises  consist  of 
separate  buildings  they  shall  be  sold  separately.  The  reason  of 
the  codifiers  for  substituting  "must"  for  "shall"  is  not  apparent; 
the  substituted  word  is  more  imperative  than  that  which  it 
replaces;  the  reasons  for  holding  the  former  statute  directory  are 
applicable  in  every  respect  to  the  new."  The  object  of  the  pro- 
vision is  to  make  the  property  produce  the  largest  sum.  Woods 
v.  Monell,  i  Johns.  Ch.  502.  If  the  values  of  independent  parcels 
are  independent  of  each  other,  they  should  be  sold  separately,  but 
if  the  values  depend  upon  each  other,  they  should  be  sold 
together,  whether  the  parties  are  adults  or  infants.  Suffern  v. 
jfo/mson,  I  Paige,  450 ;  Gregory  v.  Campbell,  16  How.  417;  Mills 
\.  Dennis,  3  Johns.  Ch.  367;  Brevoort  v.  Jaekson,  i  Edw.  447. 
Sale  will  not  be  set  aside  because  not  made  in  parcels,  where 
there  was  no  request  therefor,  and  the  referee  was  satisfied  the 
property  had  been  so  used  that  it  should  be  sold  in  bulk.  Mc- 
Laughlin V.  Teasdale,  9  Daly,  23.  Where  application  for  direc- 
tion as  to  the  order  of  sale  is  made,  it  should  be  to  the  Special 
Term.  A  judgment  will  not  be  reversed  for  failure  to  direct  as 
to  the  order  of  sale.  Bergen  v.  Blackhonse,  y  Week.  Dig.  113. 
Where  the  security  is  ample  the  preference  of  the  mortgagee  will 
not  be  considered.  Wakvorlh  v.  Farmers'  L.  &  T.  Co.  4  Sandf. 
Ch.  51;  Griswold  v.  Fowler,  24  Barb.  135.  It  was  held  in 
Lane  v.  Conger,  10  Hun,  i;  Grisivold  v.  Fowler,  4  Abb.  238; 
Lamerson  v.  Marvin,  8  Barb.  9,  that  if,  where  the  mortgage  was 
made,  the  premises  consisted  of  several  tracts,  a  subsequent  divi- 
sion into  lots  gives  no  right  to  a  sale  in  parcels,  but  the  owner  or 


JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE.  613 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

junior  mortgagee  may  request  sale  in  parcels,  notwithstanding 
description  in  mortgage  is  in  one  tract.  Ellsworth  v.  Locktvood, 
42  N.  Y.  89.  Sale  of  lands  under  foreclosure,  however,  will  not 
be  set  aside  on  the  ground  that  the  premises  were  not  sold  in 
parcels,  upon  the  application  of  a  defendant,  not  the  owner  of  the 
property,  but  only  liable  for  a  deficiency,  where  it  appears  that 
there  was  no  deficiency  on  the  sale.  SJiulcr  v.  Maxwell,  38  Hun, 
240,  appeal  dismissed,  loi  N.  Y.  657.  If  property  is  described 
in  one  parcel  in  the  mortgage  and  decree,  the  officer  making  the 
.sale  is  under  no  obligation  to  divide  the  lots,  the  purchaser  ask- 
ing it  should  obtain  an  order  of  the  court  before  the  sale.  Wood- 
Jiiill  V.  Osborne,  2  Edw.  614.  A  party  in  interest  who  desires 
that  the  notice  of  sale  should  specify  that  the  property  is  to  be 
sold  in  parcels,  should  make  his  request  in  good  season.  Hoffman 
V.  Burke,  21  Hun,  580. 

Where  the  premises  consisted,  both  at  the  time  of  the  mort- 
gage and  at  the  time  of  the  sale,  of  several  separate  parcels  dis- 
tinctly marked  by  separate  use,  it  is  the  duty  of  the  officer  to 
sell  them  separately,  and  where  a  referee  refused  so  to  conduct 
the  sale  a  resale  will  be  ordered.  The  presumption  is  that  a  sale 
in  parcels  will  be  most  advantageous,  and  the  contrary  must  be 
made  to  appear  to  sustain  a  sale  in  bulk.  American  Exchange 
Ins.  Co.  V.  Oakley,  9  Paige,  259;  Walcott  v.  ScJienck,  23  How. 
385  ;  GriffetJi  v.  Hadley,  lo  Bosw.  587.  Where  a  referee  decides 
that  property  should  be  sold  in  parcels  he  should  state  the  rela- 
tive value  and  situation  of  the  parcels  and  which  should  be  first 
sold.  If  he  decides  that  a  sale  of  the  whole  is  necessary,  he 
should  state  his  reasons.  Ontario  Bank  v.  Strong,  2  Paige,  301  ; 
Gregory  v.  Campbell,  16  How.  417.  The  court,  upon  the  written 
application  of  all  the  parties  interested,  may  order  that  all  the 
premises  be  sold  in  parcels,  though  a  portion  only  would  be  suffi- 
cient to  pay  plaintiff's  claim,  not  only  for  the  benefit  of  plaintiff, 
but  of  all  other  incumbrancers  and  of  the  owner  of  the  equity. 
Barnes  v.  Stoughton,  10  Hun,  14.  Only  the  owner  of  the  equity 
can  object  that  a  larger  portion  of  the  premises  are  sold  than  is 
necessary,  and  he  is  estopped  by  allowing  the  proceedings  as  to 
the  portion  sold  to  go  on.  McBride  v.  Leivisohn,  ly  Hun,  524. 
In  Anderson  v.  Austin,  34  Harb.  319,  it  was  held  that,  where 
parcels  adjoined  each  other,  and  had  been  previously  used 
together,  the  manner  of  sale  rested  in  the  sound  discretion  of  the 


6l4  JUDGMENT    FOR  AND    SALE   OF   REAL   ESTATE. 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

referee.  And  in  WJiitbcck  v.  Rowc,  25  How.  403,  it  is  said  that 
where  mortgaged  premises  lay  together,  contiguous  and  adjoining, 
and  appear  to  have  been  always  controlled  by  a  single  person,  it 
is  in  the  sound  discretion  of  a  referee  to  sell  such  premises  on 
foreclosure  together  or  in  parcels,  and  the  careful  and  honest 
exercise  of  such  discretion  will  not  be  disturbed  by  the  court. 
But  the  statute  presupposes  that  the  referee  will  ascertain  the 
condition  of  the  property  before  making  sale.  O' Donne II  v. 
Lindsay,  39  N.  Y.  Supr.  523.  In  Wolcott  v.  Schcnck,  23  How. 
285,  the  rule  is  .said  to  be,  that  in  case  of  parcels  they  must  be 
sold  separately  except  in  special  cases.  In  practice,  for  the  pur- 
pose of  procuring  the  highest  price  and  making  a  sale  satisfactory 
to  all  parties  concerned,  it  is  usual  for  the  referee  to  embody  in 
the  terms  of  sale  a  statement  that  the  property  will  be  offered  in 
parcels  and  together,  and  that  it  will  be  finally  struck  down  to 
the  party  bidding  the  highest  price.  The  auctioneer  then  offers 
the  property  in  parcels,  and  after  completing  the  sale  in  this  man- 
ner, offers  the  whole  property,  starting  at  a  sum  which  is  the 
aggregate  amount  of  the  parcels.  If  no  higher  sum  is  offered,  it 
is  struck  down  to  the  bidders  upon  the  parcels ;  if  a  higher  sum 
is  offered  it  is  struck  down  to  the  bidder  for  any  sum  in  excess  of 
the  amount  of  the  bids  on  the  parcels.  This  in  ordinary  cases 
will  be  found  practicable  and  convenient,  as  well  as  satisfactory 
to  the  interested  persons. 

Where  several  parcels  of  land,  one  of  which  is  primarily  liable 
for  the  mortgage  debt,  are  sold  in  the  same  mortgage,  and  failure 
to  sell  such  parcel  first  does  not  render  sale  void  in  the  absence  of 
a  judgment  by  a  party  interested  that  it  be  so  sold.  Jenks  v. 
Quinn,  61  Hun,  427,  41  St.  Rep.  22,  16  Supp.  240.  Mortgaged 
premises  consisting  of  several  lots  upon  which  a  hotel  is  built,  for 
the  use  of  which  all  the  land  is  required,  should  be  sold  as  a 
whole.      Coudcrt  v.  De  Logcrot,  62  St.  Rep.    26,  30  Supp.  1 14. 

Where  a  mortgage  was  made  upon  three  lots  of  ground, 
describing  them  as  such,  and  there  were  two  separate  buildings 
erected  upon  one  of  the  lots,  and  no  connection  with  each  other, 
it  was  held  that  the  premises  were  separate  and  distinct  parcels, 
requiring  them  to  be  sold  separately.  Heuiine7'  v.  Hiistaec,  21 
St.  Rep.  232.  This  case  distinguishes  Mutual  Life  Insurance 
Co.  v.  Bronson,  22  N.  Y.  Week.  Dig.  452,  as  to  the  nght  to  sell 
more  than  enough  to  satisfy  the  amount  due  for  costs  and  ex- 


JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE.  6l$ 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

penses,  holding  that  §  2393,  relating  to  foreclosure  by  advertise- 
ment, which  provides  that  where  the  property  consists  of  two  or 
more  distinct  farms  or  lots  as  many  only  of  the  distinct  farms  or 
lots  shall  be  sold  as  is  necessary  to  satisfy  the  mortgage,  is  abso- 
lute, mandatory  and  prohibitory. 

Dobbs  V.  Niebuhr,  19  St.  Rep.  909,  holds,  however,  that  the 
court  has  power  to  order  a  sale  of  the  whole  of  the  mortgaged 
premises  even  if  a  .sale  of  a  part  thereof  would  be  sufficient  to 
discharge  the  mortgage,  where  a  proper  case  for  the  exercise  of 
that  power  was  presented,  and  that  §  1626  does  not  prescribe  an 
invariable  form  for  judgment  in  foreclosure. 

Where  the  parties  cannot  agree  upon  the  order  of  sale,  either 
party  may  apply  to  the  court  for  instructions  to  the  referee. 
Collier  v.  Whipple,  13  Wend.  229,  approved,  King  v.  Piatt,  37 
N.  Y.  161.  A  reference  may  be  ordered  to  ascertain  and  report 
the  proper  order  of  .sale.  Barb  v.  Steele,  3  How.  1 10.  An 
application  for  direction  as  to  the  order  of  sale  should  be  made 
at  the  Trial  or  Special  Term.  Bergen  v.  Blackhouse,  7  Week. 
Dig.  113.  A  purchaser,  in  good  faith  and  for  value,  of  a  mort- 
gage should  not  have  his  rights  postponed  by  a  controversy  be- 
tween purchasers  of  the  mortgaged  premises,  concerning  the 
order  in  which  different  portions  of  the  premises  should  be  closed 
under  foreclosure.  He  is  entitled  to  judgment  for  foreclosure 
and  sale  without  reference  to  the  conflicting  claims  of  owners  of 
the  estate.  Smart  v.  Bcmcnt,  3  Keyes,  241.  But  it  is  said  in 
N.  V.  Life,  etc.  Co.  v.  Cutter,  3  Sandf.  Ch.  176,  that  the  defend- 
ants may  raise  the  question  of  order  of  sale  by  answer.  The 
report  of  sale  should  set  out  the  proceedings  upon  the  sale,  the 
payment  of  the  money,  and  the  conveyance  to  the  purchaser. 
Heyer  v.  Deaves,  i  Johns.  Ch.  254.  The  report  of  sale  should 
state  the  amount  for  which  the  property  was  sold.  The  referee 
is  not  authorized  to  ascertain  the  amount  of  a  prior  incumbrance. 
Day  V.  Johnson.,  5  Week.  Dig.  237.  As  to  requisites  of  referee's 
report,  see  Selkirk  v.  Ascough,  16  Alb.  L.  J.  151.  The  terms  of 
.sale  on  foreclosure  by  advertisement  may  provide  that  the 
premises  shall  be  sold  free  and  clear  of  all  incumbrances,  the  pur- 
chaser paying  off  out  of  the  price  the  prior  incumbrance. 
Story  V.  Hamilton,  86  N.  Y.  428.  Where  the  referee,  with  the 
consent  of  the  parties,  sells  the  premises  on  time  and  the  sale  is 
so  reported  to  the  court  and  confirmed,  the  purchaser  has  a  right 


6l6  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

to  insist  on  the  terms.  Rhodes  v.  Butcher,  6  Hun,  453.  It  is 
within  the  power  of  the  court  to  direct  that  the  sale  for  so  much 
as  is  over  and  above  the  amount  of  the  bid  shall  remain  on  bond 
and  mortgage  where  the  owners  of  the  equity  are  infants. 
Brush  V.  Shuster,  3  Abb.  N.  C.  73.  Where,  after  sale  and  before 
delivery  of  the  deed,  defendants  pay  the  amount  of  the  mort- 
gage and  the  action  is  discontinued,  the  purchaser  waiving  his 
purchase,  the  referee  is  bound  to  return  to  the  purchaser  the  pay- 
ment made  and  cannot  retain  his  fees  and  disbursements.  Fear- 
ing v.  Cor?iish,  10  Civ.  Pro.  R.  "jj. 

Sub.  4.    Sale  in  the  Inverse  Order  of  Alienation. 

Where  mortgaged  premises  have  been  conveyed  in  separate 
parcels  the  court  may  direct  the  order  of  sale.  Erie  Co.  Savings 
Bank  V.  Roop.,  48  N.  Y.  292.  Where  a  creditor  has  a  lien  upon 
two  funds  for  the  security  of  his  debt,  and  another  party  has  an 
interest  in  one  only  of  the  funds  without  any  right  to  resort  to 
the  other,  equity  will  compel  the  creditor  to  satisfy  his  debt,  if 
possible,  out  of  the  fund  in  which  he  alone  has  an  interest. 
Ingalls  \.  Morgan,  10  N.  Y.  178;  OppenJieimer  v.  Walker,  3  Hun, 
30.  The  rule  in  equity,  requiring  parcels  of  land  incumbered  by 
a  judgment  or  mortgage  to  be  sold  in  the  inverse  order  of  their 
alienation  by  the  debtor,  is  a  branch  of  the  rule.  10  N.  Y.  178, 
supra,  citing  Clozvcs  v.  Dickenson.,  5  Johns.  Ch.  235 ;  Gouver- 
neur  v.  Lytich,  2  Paige,  300;  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151  ; 
James  v.  Hubbard,  i  Paige,  235  ;  VV.  Y.  &  N.  I.  S.  &  T.  Co.  v. 
Association,  etc.,  Hopk.  460 ;  Evertsoji  v.  Booth,  19  Johns.  486; 
Cheesborough  v.  Millard,  i  Johns.  Ch.  409;  Stevens  v.  Cooper, 
I  Johns.  Ch.  123.  Where  mortgaged  premises  are  sold,  subse- 
quent to  the  date  of  the  mortgage,  to  different  purchasers,  such 
parcels,  upon  foreclosure,  are  to  be  sold  in  the  inverse  order  of 
their  alienation,  according  to  the  equitable  rights  of  the  different 
purchasers  as  between  themselves.  Guion  v.  Knapp,  6  Paige,  35  ; 
Skeel  V.  Spraker,  8  Paige,  192;  Snyder  v.  Stafford,  11  Paige,  71  ; 
N.  V.  Life,  etc.  Co.  v.  Milnor,  i  Barb.  Ch.  353;  Ferguson  v.  Kim- 
ball, 3  Barb.  Ch.  316;  Crafts  v.  Aspinzvall,  2  N.  Y.  289;  Barnes  v. 
Mott,  64  N.  Y.  397;  Coles  v.  Appleby,  87  N.  Y.  114.  The  rule 
may  be  waived  by  express  agreement  between  the  mortgagor  and 
subsequent  mortgagees  or  grantees.  Bownev.  Lynde,  13  Week. 
Dig.  97.     Although  the  principle  that  parts  of  property  shall   be 


JUDGMENT   FOR   AND    SALE   OF   REAL    ESTATE.  617 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

sold  in  the  inverse  order  of  alienation,  is  in  general  applicable  to 
the  case  of  successive  mortgages  on  parts  of  the  property  to  be 
sold,  yet  the  rule  yields  to  circumstances  for  the  protection  of 
equitable  rights.     Bernhardt  v.  Lyrnbiirner,  85  N.  Y.  172. 

It  is  the  right  and  duty  of  the  court  to  direct  the  order  in 
which  mortgaged  premises  shall  be  sold,  with  the  view  to  protect 
the  rights  of  the  different  parties  interested  in  the  equity  of 
redemption.  Winans  v.  James,  8  Abb.  Dig.  996,  citing  48  N.  V. 
299,  7  Paige,  591,  51  N.  Y.  330.  The  rule  is,  that  where  a 
creditor  has  a  lien  upon  several  parcels  of  land  for  the  payment 
of  his  debt,  and  some  of  the  land  still  belongs  to  the  person  who, 
in  equity,  ought  to  discharge  the  debt,  and  other  parcels  have 
been  sold  by  him,  the  lands  still  belong  to  such  persons  as  are 
first  chargeable  with  the  payment  of  the  debt,  and  upon  princi- 
ple, as  between  equal  equities,  he  who  is  prior  in  time  is  strongest 
in  right.  If  the  person  who  ought  to  pay  the  debt  has  conveyed 
different  parcels  of  land,  upon  which  it  is  a  lien,  at  different  times 
to  different  purchasers,  as  between  such  purchasers  the  lands  are 
chargeable  in  equity  in  the  inverse  order  of  their  alienation ;  and 
where  the  same  person  had  taken  title  to  different  parcels,  subject 
to  a  mortgage,  at  different  times,  and  had  assumed  payment  of 
the  mortgage  debt,  he  could  not  insist  upon  an  equity  in  the 
order  of  sale.  Stecre  v.  Childs,  15  Hun,  511.  The  proper 
decree  is  that  the  master  sell  the  mortgaged  premises  in  the 
inverse  order  of  the  alienation  of  the  parcels,  and  according  to 
equity  as  between  the  several  defendants,  leaving  the  master  to 
settle  the  order  of  sale  upon  the  principles  of  equity.  Ratlibone 
V.  Clark,  9  Paige,  648;  Knickerbocker  v.  Egglcston,  3  How.  130; 
N.   Y.  Life  Ins.  etc.  Co.  v.  Milnor,  i  Barb.  Ch.  353. 

And  in  Rathbonc  v.  Rowe,  25  How.  403,  it  is  said  that  the 
referee  may  exercise  his  discretion  as  to  the  manner  of  sale  where 
premises  adjoin  and  are  controlled  by  one  person.  On  a  sale  of 
lots,  where  defendant  presented  a  written  request  that  the  most 
valuable  lot  should  be  sold  first,  and  the  request  was  made  in 
good  faith,  and  in  the  belief  that  it  would  increase  the  amount 
realized,  and  no  reason  appearing  for  a  refusal,  and  the  referee 
declined  to  so  sell,  held,  that  the  sale  should  be  set  aside  and  a 
resale  ordered.  King  v.  Piatt,  37  N.  Y.  155.  A  purchaser  of  an 
undivided  interest  in  part  of  mortgaged  premises  is  not  entitled 
to  insist   that  the  parcels  shall   be  sold   in   the   inverse   order  of 


6l8  JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE. 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

alienation  if  the  sale  would  be  materially  injured  thereby.  Cash- 
man  V,  Martin,  50  How.  337.  Where  a  mortgagor  sells  parcels 
of  the  mortgaged  property  to  different  purchasers,  who  are  igno- 
rant of  the  incumbrance,  he  who  first  receives  his  deed,  and  not 
he  who  first  records  it,  is  entitled  to  the  aid  of  the  court,  and  the 
latter  must  be  first  sold.  Ellison  v.  Pccarc,  29  Barb.  333.  As  to 
order  of  sale,  where  parcels  are  sold  under  different  judgments, 
see  Woods  v.  Spaulding^  45  Barb.  602.  As  to  equities  between  a 
mortgagee  and  grantee  of  lands  subject  to  a  mortgage,  see  Kel- 
losrs'  V.  Rand,  1 1  Paicre,  i;q.  In  the  absence  of  circumstances 
showing  a  contrary  intent,  one  who  conveys  lands  subject  to 
incumbrances  and  to  whom,  without  mention  thereof,  a  part  is 
conveyed  back  is,  and  subsequent  holders  deriving  title  through 
him,  are  entitled  to  have  the  remaining  lands  held  primarily  liable 
for  the  payment  of  the  incumbrances,  and  to  the  benefit  of  the 
rule  in  equity  requiring  sale  thereof  in  satisfaction  to  be  made  in 
the  inverse  order  of  alienation.  Hopkins  v.  Wollcy,  81  N.  Y.  JJ. 
Although  the  purchaser,  at  a  foreclosure  sale,  of  that  part  of  the 
premises  primarily  liable  for  the  payment  of  the  mortgage  debt, 
and  which  sells  for  enough  to  pay,  acquires  the  same  right  which 
the  mortgagee  had  upon  the  execution  of  the  mortgage  to  have 
subsequently  alienated  property  first  sold  to  satisfy  prior  liens, 
yet  if,  by  the  terms  of  the  foreclosure  sale,  he  purchased  the  prop- 
erty expressly  subject  to  the  payment  of  the  prior  liens,  they  con- 
tinue to  be  primarily  liable  therefor.  Hart  v.  Slocum,  50  N.  Y.  381. 
A  purchaser  of  one  parcel  of  a  tract  of  land,  covered  by  a  mort- 
gage, is  entitled  to  be  protected  on  foreclosure  sale  only  to  the 
amount  which  he  has  paid.  McDonald  v.  Whitney,  2  Week.  Dig. 
529.  If  two  tenants  in  common  have  mortgaged  their  property 
for  the  payment  of  their  joint  debts  the  court  will  not  compel  the 
mortgagee  to  adopt  a  disadvantageous  order  of  sale  to  enable 
them  to  adjust  the  equities  between  them.  Van  Slyke  v.  Van 
Loan,  26  Hun,  344;  Frost  \.  Bcvins,  3  Sandf.  Ch.  188.  The  rule 
is,  however,  that  where  a  purchaser  of  part  of  mortgaged  premises 
assumes  to  pay  the  mortgage,  as  part  of  the  purchase  money,  the 
portion  so  purchased  becomes,  in  equity,  the  primaiy  fund  for 
such  payment.  Rnsscll  m.  Pistor,  7  N.  Y.  171  ;  Bozvnc  v.  Lyndc, 
91  N.  Y.  92.  A  party  to  a  foreclosure  action,  who  desires  to 
have  the  mortgaged  premises  sold  in  a  particular  order,  should 
provide  for  that  in  the  decree ;  or,  after  entry  of  the  decree,  he 


JUDGMENT    FOR   AND    SALE   OF   REAL   ESTATE.  619 

Art.  2.     Sale,  how  Advertised  and  Conducted. 


may  obtain  an  order  so  directing  the  referee,  and  if  the  referee 
disregards  proper  requests  made  at  the  time  of  the  sale,  the  sale 
may  be  set  aside.  Vandercook  v.  Co/iocs  Savi7igs  Institution, 
5  Hun,  641  ;  Snyder  v.  Stafford,  11    Paige,  71. 

It  seems  it  is  a  general  equitable  rule  that  where  a  mortgage 
covers  several  parcels  of  land  which  are  sold  separately  and  at 
different  dates  by  the  mortgagor,  they  are  liable  to  be  sold  in 
satisfaction  of  the  mortgage  as  against  the  purchasers  in  the 
inverse  order  of  alienation.  It  seems,  also,  that  where  the  holder 
of  a  mortgage  with  notice  of  the  conveyance  of  one  parcel, 
releases  another,  this,  as  a  general  rule,  constitutes  a  defence  to 
the  earlier  purchaser  to  the  extent  of  the  value  of  the  land 
released.  This  rule,  however,  is  made  in  equity  to  yield  to  the 
requirements  of  justice.  Livy\.  Tufts,  121  N.  Y.  172,  afifirming 
16  St.  Rep.  1000.  See,  also,  as  to  order  of  sale.  Coffin  v. 
Parker,  15  St.  Rep.  887. 

Land  must  be  sold  in  the  inverse  order  of  alienation.  This  is 
an  equitable  but  not  a  legal  right.  Kraft  v.  Aspinwall,  2  Coms. 
289;  Hoivard  Ins.  Co.  v.  Halsey,  4  Sandf.  565;  Halsey  v.  Reed, 
9  Paige,  Ch.  446;  ScJiryver  v.  Teller,  9  Paige,  173;  Governeurv. 
Lynch,  2  Paige,  300;  Guion  v.  Knapp,  6  Paige,  35;  Snyder  v. 
Stafford,  11  Paige,  71  ;  Nezv  York  Life  Ins.  Co.  v.  Milnor,  i  Barb. 
Ch.  353;  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151  ;  Skeel  v.  Spraker, 
8  Paige,  182;  Miles  v.  Fralich,  ii  Hun,  561  ;  Hopkins  v.  Wolley, 
81  N.  Y.  "jj ;  Breeze  v.  Busby,  13  How.  485;  National  Bank  v. 
Hilbard,  45  How.  Pr.  289;  Bowne  v.  Lynde,  91  N.  Y.  92;  Berji- 
hardt  V.  Lyviburner,  85  N.  Y.  172;  Quackenbush  v.  O'Hare,  61 
Hun,  388,  afifirmed  129  N.  Y.  485;  Jenks  v,  Quinn,  16  Supp. 
240,  61  Hun,  427,  af^rmed,  137  N.  Y.  223. 

Upon  a  sale  of  mortgaged  premises  in  an  action  for  foreclosure 
where  the  mortgagor  subsequent  to  the  execution  of  the  mortgage 
has  made  successive  transfers  of  separate  parcels  of  the  mort- 
gaged premises  to  different  persons,  that  portion,  if  any,  still 
remaining  in  his  hands  must  first  be  sold  to  satisfy  the  mortgage 
debt  and  the  costs  and  expenses  of  the  action,  and  if  a  sufficient 
sum  for  that  purpose  is  not  realized  from  such  sale,  then  the  vari- 
ous portions  of  the  mortgaged  lands  conveyed  by  the  mortgagor 
must  be  sold  in  the  inverse  order  of  their  alienation,  according  to 
the  equitable  rights  of  the  different  grantees  as  among  them- 
selves until   a  sufficient   sum   is   realized   to  satisfy  the  mortgage 


620  JUDGMENT   FOR   AND    SALE   OF   REAL    ESTATE. 

Art.  2.     Sale,  how  Advertised  and  Conducted. 

debt;  Barnes  v.  Alott,  64  N.  Y.  397;  Chapman  v.  West,  17  N.  Y, 
125  ;  Ingalls  v.  Morgan,  10  N.  Y.  178;  Van  Slyke  v.  Van  Loan,  26 
Hun,  344;  Co/es  v.  Appleby,  22  Hun,  72;  Steere  v.  Childs,  15 
Hun,  518;  and  the  court,  upon  application,  will,  in  a  judgment 
of  foreclosure  and  sale,  decree  that  the  parcels  shall  be  sold  in 
the  inverse  order  of  their  alienation  as  shown  by  the  dates  of  the 
respective  conveyances.  Hart  v.  Wandle,  50  N.  Y.  381  ;  Erie 
County  Savings  Bank  v.  Roop^  48  N.  Y.  292.  This  rule  does  not 
apply  where  a  purchaser  of  one  of  the  parcels  has  assumed  to  pay 
the  mortgage  debt.  Warren  v.  Boynton,  2  Barb.  13;  Torrey  v. 
Bank  of  Orleans,  9  Paige  Ch.  649. 

If  a  mortgagee  with  notice  of  subsequent  conveyance  of  parts 
of  the  mortgaged  premises,  releases  from  the  mortgage  one  or 
some  of  the  premises  primarily  liable,  he  thereby  releases  pro 
rata  the  portion  secondarily  liable,  and  cannot  enforce  his  lien 
against  the  residue  without  deducting  the  value  of  the  part 
released  from  the  amount  due  on  the  mortgage.  Patty  v.  Pease, 
8  Paige  Ch.  277;  Giiion  v.  Knapp,  6  Paige,  35;  Stnyvesant  v. 
Hall,  2  Barb.  Ch.  151  ;  Stevens  v.  Cooper,  i  Johns.  Ch.  425. 

The  principle  that  parcels  of  land  held  by  successive  alienees 
subject  to  a  lien  upon  the  whole,  when  resorted  to  for  satisfac- 
tion of  such  lien,  be  sold  in  the  inverse  order  of  their  alienation 
applies  to  the  case  of  successive  mortgages  or  parcels  so  that  the 
mortgagee  of  the  last  parcel  aliened  must  satisfy  prior  mortgages 
covering  the  whole  lot.  Denton  v.  Ontario  Co.  N^at.  Bank,  yy 
Hun,  83,  28  Supp.  293,  59  St.  Rep.  838. 

Sub.  5.    Trustee  Not  to  Purchase.     Sec.  1679. 

g  1679.  Purchases  by  certain  officers  prohibited.     Penalty. 

A  commissioner,  or  other  officer,  making  a  sale,  as  prescribed  in  this  title,  or 
a  guardian  of  an  infant  party  to  the  action,  shall  not,  nor  shall  any  person,  for 
his  benefit,  directly  or  indirectly,  purchase,  or  be  interested  in  the  purchase  of, 
any  of  the  property  sold;  except  that  a  guardian  may,  where  he  is  lawfully  au- 
thorized so  to  do,  purchase  for  the  benefit  or  in  behalf  of  his  ward.  The  viola- 
tion of  this  section  is  a  misdemeanor;  and  a  purchase,  made  contrary  to  this 
section,  is  void. 

A  guardian  ad  litem  cannot  purchase  for  any  one  except  an 
infant.  Lc fever  v.  Larazvay,  22  Barb.  167.  That  a  person  act- 
ing in  fiduciary  capacity  cannot  buy,  at  a  sale  made  by  himself, 
see  Terwilliger  v.  Brozvn,  44  N.  Y.  240,  and  Bennett  v.  Austin, 
81  N.  Y.  308. 


JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE.  621 


Art.  3.     Referee's  Fees  and  Expenses  and  Disposition  of  Proceeds. 


A  trustee  who  has  an  interest  to  protect  by  bidding  at  a  sale 
of  the  trust  property  and  who  is  granted  permission  to  bid 
thereon  by  the  court  on  an  appHcation  for  that  purpose,  after 
hearing  all  the  parties  interested,  may  purchase  at  such  sale  and 
obtain  a  perfect  title.     Scholle  v.  Schollc,  loi  N.  Y.  167. 

The  provision  in  a  judgment  of  foreclosure  that  any  of  the  par- 
ties may  become  purchasers  does  not  affect  equities  which  may 
exist  between  the  purchaser  and  any  other  person  for  whose 
benefit  the  purchase  may  be  deemed  as  matter  of  law  to  have  been 
made.  If  the  purchaser,  though  a  party  to  the  action,  is  acting 
in  a  fiduciary  capacity  arising  outside  of  the  relation  of  mort- 
gagor and  mortgagee,  his  liability  to  the  cestui  que  trust  cannot 
be  affected  by  such  provision.     Fulton  v.  Whitney,  66  N.  Y,  548. 

ARTICLE    III. 

Referee's  Fees  and   Expenses  and  Disposition  of  Pro- 
ceeds.   §  1676. 

Sub.  I.  Referee's  fees  and  expenses. 

2.  Disposition  of  proceeds.     §  1676. 

Sub.  I.   Referee's  Fees  and  Expenses. 

§  3297.  [Am'd,  1895.]     Referee's  fees  upon  sales  of  real  property. 

The  fees  of  a  referee  appointed  to  sell  real  property  pursuant  to  a  judgment 
in  an  action,  are  the  same  as  those  allowed  to  the  sheriff,  and  he  is  allowed  the 
same  disbursements  as  the  sheriff.  Where  a  referee  is  required  to  take  security 
upon  a  sale,  or  to  distribute,  or  apply,  or  ascertain  and  report  upon  the  dis- 
tribution or  application  of  any  of  the  proceeds  of  the  sale,  he  is  also  entitled  to 
one-half  of  the  commissions  upon  the  amount  so  secured,  distributed  or  applied, 
allowed  by  law  to  an  executor  or  administrator  for  receiving  and  paying  out 
money.  But  commissions  shall  not  be  allowed  to  him  upon  a  sum  bidden  by  a 
party,  and  applied  upon  the  paity's  demand,  as  fixed  by  the  judgment,  without 
being  paid  to  the  referee,  except  to  the  amount  of  ten  dollars.  And  a  referee's 
compensation,  including  commissions,  cannot,  where  the  sale  is  under  a  judg-' 
ment  in  an  action  to  foreclose  a  mortgage,  exceed  fifty  dollars,  unless  the 
property  sold  for  ten  thousand  dollars  or  upwards,  in  which  event  the  referee 
may  receive  such  additional  compensation  as  to  the  court  may  seem  proper,  or 
in  any  other  cause  five  hundred  dollars. 

g  3307.     Sub.  9.     Sheriff's  fees  on  sale  of  real  property. 

For  making  duplicate  certificates  of  the  sale  of  real  property,  by  virtue  of  an 
execution,  twenty-five  cents  for  each  folio.  For  drawing  and  executing  a  con- 
veyance, upon  the  sale  of  real  property,  two  dollars,  to  be  paid  by  the  grantee. 
The  sheriff  is  also  entitled  to  the  printer's  fees,  as  prescribed  by  law,  paid  by 
him  for  the  publication,  not  more  than  six  weeks,  of  a  notice  of  the  sale  of  real 


622  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE.' 

Art.  3.     Referee's  Fees  and  Expenses  and  Disposition  of  Proceeds. 

property,  and  he  may  require  the  party  directing  the  sale  to  advance  the  printer's 
fees,  in  which  case  he  must  repay  the  same  out  of  the  proceeds.  Where  the 
notice  is  published  more  than  six  weeks,  or  the  sale  is  postponed,  the  expense 
of  continuing  the  publication,  or  of  publishing  the  notice  of  postponement,  must 
be  paid  by  the  person  requesting  it.  Where  two  or  more  executions  against  the 
property  of  one  judgment  debtor  are  in  the  hands  of  the  sheriff,  at  the  time  when 
the  property  is  first  advertised,  the  sheriff  is  entitled  to  printer's  fees  upon  only 
one  execution,  and  he  must  elect  upon  which  execution  he  will  receive  the  same. 

The  court  has  no  power  to  award  larger  fees  to  a  referee  for 
selHng  real  estate  than  are  awarded  by  statute.  Ward  v.  James, 
8  Hun,  526.  The  commissions  received  by  a  referee  are  to  be 
computed  only  on  the  money  received  and  paid  out  on  a  sale 
subject  to  incumbrances;  they  cannot  be  computed  on  incum- 
brances. Strauss  v.  Hcllnian,  58  How.  377.  Where  fees  on 
reference  and  disbursements  as  to  searches  for  title  were  due  from 
the  plaintiff's  attorney  to  the  referee,  subsequently  appointed  to 
make  such  sale,  held,  that,  on  adjusting  the  sale,  his  fees  on  the 
first  reference,  and  the  disbursements  actually  paid  for  searches, 
might  also  be  allowed.  Deby  v.  Jacob,  2  Abb.  N.  C.  97.  It  was 
held  at  General  Term,  in  First  Department,  before  the  present 
Code,  in  Inncs  v.  Pursell,  2  T.  &  C.  538;  S.  C.  i  Hun,  318,  that 
a  referee,  appointed  to  sell  in  foreclosure,  was  entitled  to  the  same 
fees  as  a  sheriff.      See  Birge  v.  Ainsworth,  59  How.  473. 

It  is  said,  in  Maker  v.  Hiilbert,  at  Special  Term  of  the  Supreme 
Court,  First  Department,  61  How.  103,  that  §  3297  has  super- 
seded chapter  569,  Laws  1869,  as  amended  by  chapter  102,  Laws 
1874,  relating  to  fees  of  referees.  Under  the  provision  of  the 
Code  of  Civil  Procedure,  §  3297,  prescribing  what  fees  are  to  be 
allowed  a  referee  "appointed  to  sell  real  estate  pursuant  to  a 
judgment,"  in  all  cases  where  the  referee  is  not  required  to  pay 
the  proceeds  of  sale  into  court  for  it  to  distribute  in  accordance 
with  the  judgment,  but  that  duty  is  imposed  upon  the  referee, 
he  is  entitled  to  the  additional  compensation  allowed  by  said  pro- 
vision. The  fee  of  the  referee  for  drawing  and  executing  a  con- 
veyance to  the  purchaser  is  properly  chargeable  to  the  purchaser 
under  §  3307,  subd.  9.  Race  v,  Gilbert,  102  N.  Y.  298,  reversing 
32  Hun,  360;  S.  c.  more  fully,  10  Civ.  Pro.  R.  i;  Maker  v. 
C Conner,  i  Civ.  Pro.  R.  158.  A  referee,  to  sell  in  foreclosure 
can  recover  for  his  fees  no  more  than  the  fee  prescribed  by  stat- 
ute, although  an  express  agreement  to  pay  a  larger  sum  is  made. 
Brady  v.  Ki)igsland,   5  Civ.  Pro.  R.  413. 


JUDGMENT   FOR   AND   SALE   OF   REAL    ESTATE.  623 

Art.  3.     Referee's  Fees  and  Expenses  and  Disposition  of  Proceeds. 


A  referee  to  sell  is  entitled  to  payment  of  his  expenses  incurred 
in  advertising  the  sale,  and  neither  the  satisfaction  of  the  mort- 
gage nor  the  judgment  can  affect  his  rights.  Allen  v.  Williamson, 
21  Abb.  N.  C.  391.  See,  however,  Fearing  v.  Cornish,  10  Civ. 
Pro.  R.  -J J,  holding  that  where,  after  bidding  in  and  before  taking 
title  to  mortgaged  premises  sold  pursuant  to  a  decree  of  fore- 
closure and  sale,  the  defendant  owning  the  equity  of  redemption 
paid  the  amount  of  the  mortgage  debt,  with  interest  and  costs, 
and  discontinued  the  action  and  satisfied  the  mortgage  of  record, 
and  the  purchaser  waived  his  contract  of  sale  and  consented  to 
its  cancelation,  held,  that  the  referee  to  sell  could  not  retain,  out 
of  the  deposit  made  by  such  purchaser,  his  fees  and  disburse- 
ments, but  the  whole  amount  of  such  deposit  should  be  repaid  by 
him  to  such  depositor.  Where  a  referee  in  foreclosure  made 
three  sales,  two  of  which  fell  through  after  deposit  had  been 
made,  held,  that  he  could  only  charge  his  fees  and  commissions 
on  the  completed  sale  up  to  $50;  also  fifty  cents  for  receiving 
and  entering  the  decree,  and  $2  for  advertising,  being  the  same 
fees  allowed  to  sheriffs.  Walbridge  v.  James,  16  Hun,  8.  In 
New  York  city,  under  the  local  statute,  it  was  held  in  Richards 
V.  Richards,  76  N.  Y.  186,  that  the  referee  was  entitled  to  com- 
missions at  the  rate  allowed  to  executors,  and  also  to  fees  allowed 
by  sheriffs  on  foreclosure  sales.  Same  rule  applied  in  Kepler  v. 
Merkle,  9  Civ.  Pro.  R.  284.  In  Schermerhorn  v.  Prouty,  80 
N.  Y.  317,  it  was  said  that  the  Laws  of  1874  simply  modified 
the  act  of  1869  by  fixing  the  maximum  of  fees,  leaving  the  scale 
of  charges  up  to  that  limit  as  fixed  by  that  act.  The  act  of  1869, 
as  amended,  was  applied  in  Hobart  v.  Hobart,  86  N.  Y.  636. 

In  Lockwood  v.  Fox,  1  Civ.  Pro.  R.  407,  it  is  held  by  General 
Term  of  the  Common  Pleas  that  the  Code  has  not  superseded  the 
statute  passed,  and  amendments,  and  that  the  referee's  fees  must 
be  taxed  under  the  statute  and  not  under  the  Code,  and  this  latter 
case  is  approved  by  the  same  General  Term  in  Brady  v.  Kings- 
latid,  5  Civ.  Pro.  R.  413.  To  same  effect,  Gumirau  v.  Sullivan,  4 
Law  Bull.  6.  The  referee  is  entitled,  under  §  3297,  upon  distri- 
bution, to  one-half  of  an  executor's  commissions;  but  only  upon 
so  much  as  he  distributes,  and  not  upon  what  he  paid  over  to  the 
chamberlain.  Maher  v.  GConnor,  61  How.  103.  Where  a 
referee,  in  partition,  was  directed  to  employ  a  surveyor,  and  did 
so,  and  the  suit  was  subsequently  discontinued,  the  plaintiff  in 


624  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 

Art.  3.     Referee's  Fees  and  Expenses  and  Disposition  of  Proceeds. 

the  suit  is  liable  for  the  fees  of  the  surveyor,  and  they  may  be 
fixed  by  the  jury  according  to  the  value  of  the  services.  Mese- 
role  V.  Furman,  38  Hun,  355. 

A  referee  to  sell  in  partition,  to  whom  is  subsequently  referred 
the  matter  of  ascertaining  the  interest  of  the  parties  and  distribut- 
ing the  proceeds,  is  entitled  to  recover  the  same  fees  and  dis- 
bursements as  would  be  allowed  to  the  sheriff ;  also  one-half  of 
executor's  commissions  upon  amount  of  money  received  and  paid 
out  to  the  statutory  per  diem  fee  for  the  sittings  and  trial  of 
issues  before  him,  and  to  an  auctioneer's  fee.  Where  there  is 
unnecessary  delay  on  the  part  of  the  referee  in  distributing  part 
of  the  fund  and  he  omits  to  deposit  the  moneys  in  a  trust  com- 
pany, he  is  chargeable  with  interest  at  the  rate  which  could  have 
been  received  from  a  trust  company  for  the  period  of  such  omis- 
sion.    Kepler  v.  Merkle,  9  Civ.  Pro.  R.  284. 

The  fees  of  referees  to  sell  are  regulated  by  §§  3297  and  3307, 
subdivision  9.  Commissions  on  a  sale  by  a  referee  of  real  estate 
under  a  decree  cannot  be  allowed  on  a  sum  bidden  by  a  party  to 
the  action,  and  applied  upon  that  party's  demand  as  fixed  by  the 
judgment,  without  being  paid  to  the  referee.  Gumiran  v.  Sulli- 
van, 4  Law  Bull.  6. 

A  referee  is  not  entitled  to  more  than  $50  for  his  compensation 
for  a  sale  on  foreclosure  unless  he  has  actually  received  and  is 
accountable  for  $10,000  or  more  in  cash.  Hosmer  v.  GaJis,  14 
Misc.  229,  35  Supp.  471.  A  referee  to  sell  on  foreclosure  is  not 
entitled  to  double  fees  where  two  mortgages  are  foreclosed  in  the 
same  action.     Sadler  v.  Lyon,  62  St.  Rep.  527. 


Sub.   2.    Disposition  of  Proceeds.     §  1676. 

^  1676.  Upon  sale  of  real  property,  officer  to  pay  taxes,  etc. 

Where  a  judgment  rendered  in  an  action  for  partition,  for  dower,  or  to  fore- 
close a  mortgage  upon  real  property,  directs  a  sale  of  the  real  property,  the  offi- 
cer making  the  sale  must,  out  of  the  proceeds,  unless  the  judgment  otherwise 
directs,  pay  all  taxes,  assessments,  and  water  rates,  which  are  liens  upon  the 
property  sold,  and  redeem  the  property  sold  from  any  sales  for  unpaid  taxes, 
assessments,  or  water  rates,  which  have  not  apparently  become  absolute.  The 
sums,  necessary  to  make  those  payments  and  redemptions,  are  deemed  expenses 
of  the  sale,  within  the  meaning  of  that  expression,  as  used  in  any  provision  of 
article  second,  third  or  fourth  of  this  title. 

A  purchaser  may  pay  entire  amount  to  referee  and  require  him 
to  ascertain  and  pay  incumbrances,  although,  by  the  terms  of  the 


JUDGMENT   FOR   AND    SALE   OF    REAL   ESTATE.  625 


Art.  3.     Referee's  Fees  and  Expenses  and  Disposition  of  Proceeds. 


sale,  he  was  required  to  present  such  claims  for  payment  within  a 
time  limited.  Potighkccpsie  Savings  Bank  v.  Winn,  56  How.  368. 
A  purchaser,  at  a  judicial  sale,  does  not,  by  taking  .subject  to 
taxes  and  assessments  in  the  usual  way,  preclude  himself  from 
having  unpaid  illegal  taxes  and  assessments  vacated,  and  to  im- 
peach a  tax  lease  subsequently  made  on  a  sale  for  their  non-pay- 
ment. Simnis  v.  Vogt,  11  Abb.  N.  C.  48.  Where  a  tax  is  a  lien 
on  a  premises,  sold  at  judicial  sale,  it  .should  be  paid  and  dis- 
charged by  the  referee  pursuant  to  this  section.  It  is  not  the 
duty  of  the  referee  to  pay  the  .same  out  of  the  purchase  money 
before  compelling  the  purchaser  to  take  title,  O' Dell  v.  O' Dell, 
21  Week.  Dig.  90.  It  is  in  conformity  with  the  settled  practice 
of  the  court  to  have  taxes  and  assessments,  that  are  liens  on  the 
premises  sold,  deducted  and  paid  out  of  the  purchase  money. 
That  is  sometimes  done  under  special  directions  contained  in  the 
judgment,  but  more  frequently  is  provided  for  by  the  terms  of 
sale.  The  fact  that  the  premises  in  question  are  leasehold,  and 
that  in  the  absence  of  an  express  agreement,  by  the  lessee,  to 
pay  taxes  and  assessments,  they  are  payable  by  the  lessor,  is 
immaterial.  It  is  proper  they  .should  be  deducted  out  of  the  pur- 
chase price.  Catlin  v.  Grissler,  57  N.  Y.  363.  See  Stuyvesant  v. 
Browning,  33  Supr.  Ct.  203,  that  where  a  mortgage  is  on  a  lease 
the  taxes,  assessments,  etc.,  .should  not  be  paid  out  of  the  pur- 
chase money.  Where  the  judgment  and  terms  of  sale  provided 
that  the  taxes  and  all  Hens  were  to  be  deducted  from  the  pro- 
ceeds, held,  that  plaintiff,  the  purchaser,  might  depo.sit,  in  the 
proper  ofHce,  the  money  to  redeem  from  tax  sale,  for  which  he 
held  certificates,  and  on  furnishing  proof  of  these  facts  he  was 
entitled  to  deduct  the  amount  from  the  purchase  money,  and  for 
judgment  for  any  deficiency  in  the  mortgage.  The  certificates 
were  a  lien,  and  it  made  no  difference  that  plaintiff  held  them. 
Cornell  v.  Woodhull,  yy  N.  Y.  203.  Where  the  decree  of  sale  on 
foreclosure  directs  the  referee  to  first  pay,  out  of  the  proceeds, 
the  taxes  and  assessments  which  are  liens  on  the  property,  and 
the  purchaser  pays  over  to  him  the  full  amount  of  his  bid,  the 
referee  is  bound  to  protect  such  purchaser  by  paying  the  taxes 
and  assessments,  and  if  he  fails  to  do  so,  and  the  same  are  en- 
forced against  the  lands,  he  is  liable  therefor.  The  referee  is  not 
relieved  from  liability  by  the  fact  that  the  terms  of  sale  gave  the 
purchaser  permission  to  pay  the  assessment  and  have  it  allowed 
[Special  Actions  —  40.] 


626  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 

Art.  4.     Report  of  Sale  and  Order  of  Confirmation. 


out  of  the  purchase  price,  if  he  did  not  do  so.  Also  held,  that  a 
delay  of  two  years  was  not  laches,  warranting  a  denial  of  a  motion 
by  the  purchaser  to  compel  the  referee  to  pay  the  amount  of 
taxes,  etc.,  as  directed  by  the  judgment,  where  it  appeared  that 
the  referee  knew  of  the  lien  at  the  time  of  the  sale,  and  his  posi- 
tion had  not  since  changed,  nor  had  the  delay  harmed  him. 
Weseman  v.  Wingrove,  85  N.  Y.  353,  affirming  9  Week.  Dig. 
434.  Although  the  terms  of  sale  permit  the  purchaser  to  pay  off 
liens,  he  is  not  bound  to  do  so,  but  may  pay  the  whole  price  and 
require  the  referee  to  execute  the  judgment,  and  if  the  referee 
refuses  to  pay  the  liens  the  court  may  compel  him  to  do  so. 
Day  V.  Bergen,  53  N.  Y.  404. 

The  referee  is  not  authorized  to  pay  over  the  purchase  money 
until  he  has  satisfied  the  liens  he  has  knowledge  of.  He  may 
apply  to  the  court  for  instructions.  Easton  v.  Pickersgill,  55 
N.  Y.  310.  One  who  purchases  at  a  judicial  sale,  subject  to  all 
incumbrances,  is  not  entitled  to  have  the  surplus  moneys  applied 
to  the  payment  of  an  unrecorded  mortgage,  the  existence  of 
which  was  unknown  to  all  the  parties,  on  account  of  an  error 
made  in  indexing  it.  Biittron  v.  Tibbitts,  10  Abb.  N.  C.  41.  A 
referee  whose  report  of  sale  shows  that  a  deficiency  was  caused 
by  his  allowing  to  the  purchaser  claims  which  the  judgment  did 
not  authorize,  and  which  it  did  not  appear  the  terms  of  sale 
clearly  authorized,  may  be  ordered  to  pay  into  court  the  sur- 
plus which  would  have  existed  if  he  had  not  done  so.  Koch  v. 
Pur  sell,  45  Supr.  Ct.  162.  A  motion,  by  one  who  has  assumed 
the  payment  of  a  mortgage,  to  have  the  judgment  against  him 
reduced  by  the  amount  of  taxes  which  were  deducted  from  the 
sum  bid  pursuant  to  the  directions,  denied  as  being  too  late  if 
made  after  sale  has  taken  place.  FleiscJiauer  v.  Dollner,  9  Abb. 
N.  C.  372.  The  payment  of  taxes  is  for  the  protection  of  the 
purchaser  and  not  to  indemnify  the  owner  of  a  prior  lien  not  a 
party  to  the  action.     Mutual  Life  Ins.  Co.  v.  Sage^  28  Hun,  595. 

ARTICLE    IV. 

Report  of  Sale  and  Order  of  Confirmation.    Rule  30, 

IN  Part. 

An  order  requiring  the  referee  to  convey  a  valid  and  sufficient 
deed,  requires  a  deed  sufficient  in  form  and  terms,  to  make  the 
title  obtained  by  it  as  valid  to  the  purchaser  as  it  is  in  the  power 


JUDGMENT    FOR   AND    SALE    OF   REAL   ESTATE.  627 


Art.  4.     Report  of  Sale  and  Order  of  Confirmation. 


of  the  referee  officially  to  make  it.  Easton  v.  Picker sgill,  55 
N.  Y.  310.  It  is  said  that  a  deed  on  sale  in  foreclosure  passes 
the  title  immediately,  on  delivery,  without  a  report  of  sale  and 
order  of  confirmation.  Fort  v.  Burch,  6  Barb.  60.  But  this 
seems  to  depend  upon  the  provisions  of  the  decree  of  sale.  In 
Peck  V.  Knickerbocker,  18  Hun,  186,  the  cases  on  the  subject  are 
collated.  It  is  there  held  that  the  decree  does  not  per  se  divest 
the  title  of  the  mortgagor,  and  that  confirmation  is  necessary; 
Astor  V.  Turner,  11  Paige,  436;  and  referring  to  Simers  v.  Saltns, 
3  Den.  214,  and  Mitchell  v.  Bartlett,  51  N.  Y.  447,  as  distin- 
guishing the  rule  that  where  the  decree  does  not  specially  pro- 
vide that  the  purchaser  have  possession,  on  production  of  the 
referee's  deed,  confirmation  is  necessary.  In  Moore  v.  Shaw,  15 
Hun,  428,  appeal  dismissed,  -]-/  N.  Y.  512,  it  is  held  report  and 
confirmation  are  not  necessary,  in  foreclosure,  in  order  to  enable 
plaintiff  to  issue  execution  for  deficiency.  A  referee's  deed  in 
foreclosure  must  state  whose  right,  title  and  interest  has  been 
sold.  Randall  V.  Von  Ellcrt,  12  Hun,  577.  As  to  the  necessity 
for  report  and  order  when  a  writ  of  assistance  is  required,  see 
cases  cited  under  §  1675. 

Rule  61  provides  that  no  report  of  sale  in  foreclosure  shall  be 
confirmed  unless  accompanied  by  a  proper  voucher  for  the  sur- 
plus moneys,  and  .showing  that  they  have  been  paid  over,  deposited 
or  disposed  of  in  pursuance  to  the  judgment.  The  party  filing 
the  report  may  enter  an  order  ex  parte  that  unless  exceptions 
are  filed  within  eight  days  after  notice  of  the  entry  and  filing,  it 
shall  stand  confirmed,  and  .serve  a  copy  of  this  order  and  notice 
of  its  entry  with  the  notice  of  filing  the  report  pursuant  to  Rule 
30.  Bachev.  Doscher,  4.1  Supr.  150.  The  title  of  the  purchaser 
and  the  report  will  become  absolute  and  .stand  as  in  all  things 
confirmed,  unless  exceptions  thereto  are  filed  and  served  within 
eight  days  after  service  of  notice  of  filing  the  same,  i  Barb.  Ch. 
Pr.  529. 

Rule  30  (last  half).     References  other  than  of  issues,  etc. 

In  references  other  than  for  the  trial  of  the  issues  in  an  action,  or  for  compui- 
in;,^  the  amount  due  in  foreclosure  cases,  the  testimony  of  the  witnesses  shall  be 
signed  by  them,  and  the  report  of  the  referee  shall  be  filed  with  the  testimony, 
and  a  note  of  the  day  of  the  filing  shall  be  entered  by  the  clerk  in  the  proper 
book,  under  the  title  of  the  cause  or  proceeding,  and  the  said  report  shall  become 
absolute,  and  stand  as  in  all  things  confirmed,  unless  exceptions  thereto  are  filed 
and  served  within  eight  days  after  service  of  notice  of  the  filing  of  the  same.     If 


628  JUDGMENT   FOR  AND   SALE   OF   REAL   ESTATE. 


Art.  4.     Report  of  Sale  and  Order  of  Confirmation. 


exceptions  are  filed  and  served  within  such  time,  the  same  may  be  brought  to  a 
hearing  at  any  Special  Term  thereafter,  on  the  notice  of  any  party  interested 
therein. 

If  a  party  neglect  to   except  to  a  referee's  report  for  eight   days 
after  notice  of  filing  it  becomes  absolute,  although  it  be  defective 
on  its  face.     Catlin  v.  Catlin,  2  Hun,  378.     In  Moore  v.  Shaw,  15 
Hun,  428,   the   syllabus   states   that   it   seems   that   where   in   an 
action  to  foreclose  a  mortgage  the  judgment  provides  for  usual 
deficiency  judgment,  it  is  unnecessaiy  to  apply  to  the  court  for 
an  order  confirming  the  report  of  the  referee  before  issuing  exe- 
cution against  the  defendant  for  the  amount  of  the  deficiency, 
nor  is  it  necessary  to  enter  a  further  judgment  upon  the  filing  of 
said  report;  and  it  appears  that  it  may  be  necessary  to  have  the 
report  confirmed  in  order  to   perfect  the  title  as  between  mort- 
gagor and  purchaser.     It   is  said,  in  the   opinion,  that   the  rule 
requiring  confirmation  was  one  in  chancery,  and  not  a  statutory 
requirement.     It  is,  however,  prudent  to  obtain  an  order  of  con- 
firmation on  the  report,  and  direction  fixing  the  amount  of  the 
judgment  for  deficiency.     See,  also,  Giles  v.    Comstock,  4  N.  Y. 
270.     It  rests  wholly  in  the  discretion  of  the  court  whether  the 
sale  should  be  confirmed  or  not,  and  this  power  will  be  exercised 
prudently  and  fairly  in  the  interest  of  all  concerned.     An  order 
directing  a  resale  is  not  subject  to  review  on  appeal.      Crane  v. 
Stiger,  58  N.  Y.  625;  Hale  v.  Maxoji,  60  N.   Y.  339;  Goodellv. 
Harringtoji,  76  N.  Y.  547.     If  the  proceedings  in  the  action  have 
been  regular,  the  title  passes  to  the  purchaser  as  of  the  date  of 
the  deed,  the  confirmation  relating  back  to  that  time.     Fort  v. 
Burch,  6  Barb.  60;  Stimson  v.  Arnold,  5  Abb.  N.  C.  377 ;  Fuller  v. 
Van  Geeseu,  4  Hill,  171  ;  Mitchell  v.  Bartlett,  51  N.  Y.  447.     But 
title  does  not  vest  until  the  delivery  of  the  deed.     Mitchell  v. 
Bartlett,  51    N.  Y.  447.     After  judgment  and  sale,  while  await- 
ing confirmation,  the  court  has  power,  on   petition  of  the  pur- 
chaser, to  restrain  the  mortgagor  from  committing  waste.     Mjitual 
Life  Ins.  Co.  v.  Bigler,  79  N.  Y.  668.      The  questions  in  dispute 
between  the  mortgagor  and  purchaser  arising  upon  the  sale  should 
be  settled   upon    the  motion    to    confirm   the   report.      Farmers' 
Loan  a7id  Trust  Co.  v.  Banker  s.  etc.  Co.  11  Civ.  Pro    R.  307. 

§  1244.  [Am'd,  1879.]     Conveyance  to  state  name  of  party. 

A  conveyance  of  property,  sold  by  virtue  of  an  execution,  or  sold  pursuant  to 
a  judgment,  which  specifies  the  particular  party  or  parties,  whose  right,  title  or 


JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE.  629 

Art.  4.     Report  of  Sale  and  Order  of  Confirmation. 

interest  is  directed  to  be  sold,  must  distinctly  state,  in  the  granting  clause  thereof, 
whose  right,  title,  or  interest  was  sold,  and  is  conveyed,  without  naming,  in  that 
clause,  any  of  the  other  parties  to  the  action;  otherwise,  the  purchaser  is  not 
bound  to-  accept  the  conveyance,  and  the  officer  executing  it  is  liable  for  the 
damages,  which  the  purchaser  sustains  by  the  omission,  whether  he  accepts  or 
refuses  to  accept  it. 

Referee's  Report  of  Sale  in  Foreclosure. 

SUPREME  COURT. 


THE  ULSTER  COUNTY  SAVINGS  INSTI- 
TUTION 


agst. 


GEORGE  W.  HASTEN. 


To  the  Supreme  Court : 

In  pursuance  and  by  virtue  of  a  judgment  of  this  court,  made  in 
the  above  action,  on  the  13th  day  of  March  in  the  year  18S6,  by 
which  it  was,  among  other  things,  ordered  and  adjudged,  that  all 
and  singular  the  mortgaged  premises  mentioned  in  the  complaint  in 
this  action,  and  hereinafter  described,  or  so  much  thereof  as  might 
be  sufficient  to  raise  the  amount  adjudged  to  be  due  to  the  plaintiff 
as  therein  mentioned,  for  principal  and  interest,  and  the  costs  in  the 
action,  and  which  might  be  sold  separately  without  material  injury 
to  the  parties  interested,  be  sold  at  public  auction  by  or  under  the 
direction  of  the  subscriber,  a  referee  duly  appointed  therein,  for  the 
purpose  of  making  such  sale;  that  the  said  sale  be  made  in  the 
county  where  the  said  mortgaged  premises,  or  the  greater  part 
thereof,  are  situated ;  that  the  referee  give  public  notice  of  the  time 
and  place  of  such  sale,  according  to  the  course  and  practice  of  this 
court,  and  the  plaintiff,  or  any  of  the  parties  to  this  action,  might 
become  the  purchaser;  that  the  referee  execute  a  deed  to  the  pur- 
chaser of  the  mortgaged  premises  on  the  said  sale;  and  that  the  said 
referee,  after  deducting  fees  and  expenses  as  provided  by  vj§  1626 
and  1676,  Code  of  Civil  Procedure,  pay  to  the  said  plaintiff's  attor- 
ney, out  of  the  proceeds  of  the  said  sale,  his  costs  in  this  action  as 
adjusted  by  the  court,  and  also  the  amount  so  adjudged  to  be  due 
as  aforesaid,  together  with  the  legal  interest  thereon  from  the  date 
of  said  decree,  or  so  much  thereof  as  the  purchase  money  of  the 
mortgaged  premises  would  pay  of  the  same,  and  that  the  referee 
take  receipts  for  the  amount  so  paid,  and  file  the  same  with  his 
report;  and  that  he  pay  over  the  surplus  moneys  arising  from  the 
said  sale,  if  any  there  should  be,  to  the  treasurer  of  the  county  of 
Ulster,  within  five  days  after  the  same  shall  be  received  and  ascer- 
tainable, subject  to  the  further  order  of  the  court.  And  whereby  it 
was  further  ordered  and  adjudged  that  if  the  moneys  arising  from 
the  said  sale  should  be  insufficient  to  pay  the  amount  so  reported 
due  to  the  plaintiff,  with  the  interests  and  costs  aforesaid,  that  the 


630  JUDGMENT   FOR   AND    SALE    OF   REAL   ESTATE. 

Art.  4.     Report  of  Sale  and  Order  of  Confirmation. 

said  referee  specify  the  amount  of  such  deficiency  in  his  report  of 
the  sale,  I,  the  subscriber,  Edward  B.  Walker,  Jr.,  referee  as  afore- 
said, residing  in  the  village  of  New  Paltz,  do  respectfully  certify  and 
report,  that  having  been  charged  by  the  attorney  for  the  plaintiff 
wnth  the  execution  of  said  judgment,  I  advertised  said  premises  to 
be  sold  by  me  at  public  auction,  at  the  front  door  of  the  court  house 
in  the  city  of  Kingston,  N.  Y.,  at  twelve  o'clock  noon,  on  the  30th 
day  of  April,  in  the  year  1886;  that  previous  to  said  sale  I  caused 
notice  thereof  to  be  publicly  advertised  for  six  weeks  successively, 
as  follows,  viz. :  By  causing  a  printed  notice  thereof  to  be  fastened 
up  in  three  public  places  in  the  city  of  Kingston,  where  such  premi- 
ses were  to  be  sold,  and  three  notices  fastened  up  in  the  town 
of  Marbletown,  in  which  the  said  mortgaged  premises  are  situated, 
and  by  causing  a  copy  of  such  notice  to  be  printed  once  in  each  week 
during  the  six  weeks  immediately  preceding  such  sale,  in  a  public 
newspaper  printed  in  said  county  of  Ulster,  to  wit,  the  Kingston 
Daily  Leader,  printed  at  the  city  of  Kingston,  in  said  county,  which 
notices  contained  a  brief  description  of  said  mortgaged  premises. 

And  I  do  further  report  that  on  the  said  30th  day  of  April,  in  the 
year  1886,  the  day  on  which  the  said  premises  were  so  advertised  to 
be  sold  as  aforesaid,  I  attended,  at  the  time  and  place  fixed  for  said 
sale,  and  exposed  said  premises  for  sale  at  public  auction  to  the 
highest  bidder,  and  the  said  premises  were  then  and  there  fairly 
struck  off  to  Eliza  C.  Van  Wagonen,  of  Marbletown,  Ulster  county, 
N.  Y.,  for  the  sum  of  $4,250,  she  being  the  highest  bidder  therefor, 
and  that  being  the  highest  sum  bidden  for  the  same. 

And  I  do  further  certify  and  report  that  I  have  executed,  acknowl- 
edged and  delivered  to  said  purchaser  the  usual  referee's  deed  for 
said  premises,  and  have  paid  over  or  disposed  of  the  purchase 
moneys,  or  proceeds  of  such  sale,  as  follows,  viz. :  I  have  paid  to 
the  attorney  for  the  plaintiff  the  sum  of  $200.68,  being  the  amount 
of  his  costs  of  this  suit,  with  the  interest  as  adjusted,  and  have 
taken  a  receipt  therefor,  which  is  hereto  annexed.  I  have  also 
retained  in  my  hands  the  sum  of  $49.93,  being  the  amount  of  my 
fees  and  disbursements  on  said  sale.  And  I  have  paid  to  the  plain- 
tiff the  sum  of  $3,9-71.39,  and  have  taken  a  receipt  therefor,  which 
is  hereunto  annexed.  I  have  paid  to  James  M.  Cooper,  guardian  ad 
litem,  the  sum  of  $50,  his  costs,  and  have  taken  his  receipt  therefor, 
which  is  hereto  annexed ;  and  have  paid  taxes  and  water  rates  as 
specified  in  schedule  attached. 

And  I  do  further  certify  and  report  that  the  premises  so  sold  and 
conveyed  as  aforesaid,  were  described  in  said  judgment  and  in  the 
deed  so  executed  by  me  aforesaid,  as  follows,  viz. :  (Here  insert 
description  of  premises  sold.) 

And  I  also  report  that  the  deficiency  due  to  the  plaintiff  from  the 
defendant  George  W.  Basten,  and  for  which  he  is  personally  liable 
under  the  judgment  herein,  is  $325.10,  with  interest  from  the  date 
of  this  my  report. 

All  of  which  is  respectfully  reported  to  this  court. 

Dated  May  3,  1886.  E.  B.  WALKER,   JR., 

Referee. 


JUDGMENT   FOR   AND    SALE    OF   REAL    ESTATE.  63 1 


Art.  4.     Report  of  Sale  and  Order  of  Confirmation. 


SUPREME  COURT. 

(Title  as  before.) 

Received  April  30,  1886,  of  John  N.  Van  Derlyn,  the  referee  who 
made  the  sale  of  the  premises  under  and  by  virtue  of  the  judgment 
in  the  above-entitled  cause,  the  sum  of  $3,971-39,  which  sum,  being 
part  of  the  proceeds  of  the  sale  of  said  premises,  is  received  by  me 
under  and  by  virtue  of  the  provisions  of  said  judgment,  being  the 
amount  adjudged  to  be  paid  to  said  plaintiff,  with  interest  thereon 
as  mentioned  in  said  judgment. 

J.   E.   OSTRANDER, 
I'reas.  Ulster  County  Savings  Institution. 

SUPREME  COURT. 

(Title  as  before.) 

Received  April  30,  1886,  of  Edward  B.  Walker,  Jr.,  the  referee 
who  made  the  sale  of  the  premises  under  and  by  virtue  of  the  judg- 
ment in  the  above-entitled  cause,  the  sum  of  $200.68,  being  the 
amount  of  the  costs  and  disbursements  of  the  plaintiff  in  said  action, 
as  fixed  by  the  court,  with  the  interest  as  taxed,  which  costs  are 
paid  me  by  said  referee  under  and  by  virtue  of  the  provisions  of 
said  judgment. 

WILLIAM  S.    KENYON, 

Attorney  for  Plaintiff, 
SUPREME  COURT. 

(Title  as  before.) 

April  30,  1886,  received  of  Edward  B.  Walker,  Jr.,  the  referee 
herein,  the  sum  of  $50,  being  in  full  for  my  fees  as  guardian  ad  litem. 

J.   M.    COOPER. 

It  is  not  proper  to  provide  for  confirmation  in  the  order  of 
reference.      Citizens  Savings  Bank  v.  Baker,  17  St.  Rep.  79. 

Final  Order  Confirming  Sale  in  Foreclosure. 

(Caption,  usual  form.) 
(Title  as  before.) 

On  reading  and  filing  the  report,  dated  August  i,  1888,  of  C.  M. 
Woolsey,  referee  heretofore  appointed  herein,  of  the  sale  of  the 
mortgaged  premises  mentioned  and  described  in  the  complaint  in 
this  action,  and  on  motion  of  D.  W.  Ostrander,  attorney  for  plaintiff, 

Ordered,  that  said  report  be  and  the  same  is  in  all  things  con- 
firmed. 

And  it  is  further  ordered,  that  the  clerk  of  Ulster  county  enter 
and  docket  judgment  for  deficiency  in  favor  of  plaintiff  upon  said 
report  against  George  C.  Schoonmaker  for  $625.25,  with  interest 
from  June  11,  1888,  and  that  plaintiff  have  execution  therefor. 

Precedents  for  report  of  sale  and  order  of  confirmation  in  par- 
tition will  be  found  under  that  title,  Article  13. 


632  JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE. 

Art.  5.     Resale,  when  Ordered. 

ARTICLE    V. 
Resale,  When  Ordered. 

The  court  has  general  jurisdiction  over  a  sale  made  under  its 
decree,  and  is  bound  to  see  that  it  is  not  made  the  instrument  of 
injustice;  Cratie  v.  Lawre?ice,  7  Week.  Dig.  517;  and  has  power 
to  set  aside  a  sale  of  lands  made  pursuant  to  its  judgment,  or 
order,  for  fraud  or  irregularity,  even  against  a  bofia  fide  grantee  of 
the  purchaser.  Hale  v.  Clauson,  60  N.  Y.  339.  But  such  pur- 
chasers will  be  protected.  EllswortJi  v.  Lockwood,  9  Hun,  548. 
A  sale  may  be  set  aside  though  the  report  has  been  confirmed 
and  deed  delivered.  Crane  v.  Stiger,  58  N.  Y.  625.  The  court 
may  set  aside  a  sale  upon  a  ground  insufficient  to  confer  an  abso- 
lute right  to  a  resale,  it  may  relieve  against  mistakes,  accidents, 
or  hardship,  or  oppressive  or  unfair  conduct  of  others,  although 
not  amounting  to  a  violation  of  law,  and  if  fraud  is  alleged  may 
order  a  resale  upon  such  a  state  of  facts,  casting  a  doubt  upon 
the  fairness  of  the  sale,  as  to  render  it  inexpedient  to  confirm  the 
sale,  although  the  alleged  fraud  may  not  be  clearly  established, 
and  the  question  whether  the  relief  shall  be  by  a  reduction  of  the 
bid  or  a  resale  is  purely  discretionary.  Fisher  v.  Henry,  78 
N.  Y.  387,  dismissing  appeal  from  17  Hun,  370.  Collusion  pre- 
venting competition  at  a  judicial  sale  to  an  infant's  prejudice  is 
legal  fraud,  and  subsequent  mortgagees  and  purchasers  with 
knowledge  can  acquire  no  benefit  therefrom.  Hoivell  v.  Mills, 
53  N.  Y.  322.  But  in  such  case  the  sale  will  be  set  aside  only  on 
assurance  of  a  higher  price  on  resale.  Brush  v.  Shuster,  3  Abb. 
N.  C.  63.  A  sale  will,  however,  be  set  aside  on  slight  grounds 
where  the  interests  of  infants  are  affected.  Djincan  v.  Dodd,  2 
Paige,  99;  Lefevcrv.  Larazvay,  22  Barb.  167.  But  not  on  the 
sole  ground  that  the  guardian  of  an  infant  failed  to  attend  the 
sale,  but  where  there  is  any  fraud,  by  which  the  purchaser  has 
been  misled,  it  will  be  vacated.  Gardiner  v.  Schenierhorn, 
Clarke's  Ch.  102. 

Where  a  party  interested  requested  that  the  sale  should  not 
take  place  on  election  day,  and  made  a  reasonable  request  as  to 
sale  in  parcels,  which  was  disregarded,  the  sale  was  set  aside. 
Occupying  a  situation  of  advantage,  it  behooves  the  plaintiff  to 
pursue  his  remedy  with  scrupulous  care  not  to  inflict  unnecessary 


JUDGMENT    FOR   AND    SALE   OF   REAL   ESTATE.  6}} 

Art.  5.     Resale,  when  Ordered. 

injury  upon  the  party  within  his  power,  and  it  is  the  duty  of  the 
court  to  see  that  its  process  is  not  made  unduly  oppressive. 
Kt?ig-  V.  P/at^  37  N.  Y.  155.  Statements  made  by  plaintiff,  or 
his  agents,  calculated  to  mislead  purchasers,  is  ground  for  setting 
aside  sale.  Slocum  v.  Glass,  3  How.  178;  Murdoch  v.  Emfie,  19 
How.  79;  Bant  a  v.  Maxwell,  12  How.  479;  Francis  v.  Clmrch, 
Clarke's  Ch.  475;  Crane  v.  Stiger,  2  T.  &  C.  577,  appeal  dis- 
missed, 58  N.  Y.  645.  Or  any  unfair  advantage  taken  by  plain- 
tiff or  one  in  his  behalf.  Crane  v.  Stiger,  2  T.  &  C.  577;  Fair- 
child  V.  Fairchild,  59  How.  351  ;  Frost  v.  Myrick,  i  Barb.  370; 
May  V.  May,  ii  Paige,  201  ;  Billi?igton  v.  Forbes,  10  Paige,  487; 
Woodruff  V.  Bush,  8  How.  117.  Irregularity  in  conducting  the 
sale  is  ground  for  setting  it  aside  where  any  interested  party  is 
injured  thereby,  as  a  variance  in  the  hour  of  sale  as  announced 
on  adjournment,  and  as  subsequently  published,  or  a  sale  on 
terms  different  from  those  prescribed  by  the  judgment,  or  con- 
trary to  the  equities  of  the  parties  as  to  the  order  of  sale.  Miller 
v.  Hull,  4  Den.  104;  Goldsmith  v.  Osborne,  i  Edw.  560 ;  Cunning- 
ham V.  Cassidy,  17  N.  Y.  276;  Griffeth  v.  Hadlcy,  10  Bosw,  587; 
Wolcott  V.  Schenck,  23  How.  385  ;  Hotchkiss  v.  Clifton  Air  Cure, 
4  Keyes,  170;  Merchants  Ins.  Co.  v.  Hinman,  3  Abb.  455; 
Breese  v.  Burley,  13  How.  485.  The  failure  to  advertise  the 
postponement  of  a  sale  is  an  irregularity  for  which  the  court 
might  set  aside  the  sale  upon  the  seasonable  application  of  a 
party  to  the  foreclosure,  but  it  will  not  constitute  a  jurisdictional 
defect  in  the  proceedings  which  will  affect  the  title  of  the  pur- 
chaser.    Beckstein  v.  Schultz,  9  St.  Rep.  815. 

The  rule  as  to  setting  aside  sale  is  held  somewhat  more  strictly 
against  plaintiff  than  against  a  stranger.  Kellogg  v.  Hoivell,  62 
Barb.  280;  Gould  v.  Libby,  24  How.  440;  Tripp  v.  Cook,  26 
Wend.  146;  Mottv.  Walkley,  3  Edw.  590;  Campbell  \.  Sivan,  0^% 
Barb.  109.  The  fact  that  one  moving  to  vacate  a  sale  had  relied 
upon  a  stay  of  proceedings  which  he  had  obtained  to  stay  the  sale, 
and  which  was  vacated  on  the  day  before  the  sale,  too  late  for 
him  to  attend,  is  not  a  ground  for  relieving  him.  Peck  v.  N.  J. 
&  N.  Y.  R.  R.  Co.  22  Hun,  129,  appeal  dismissed,  85  N.  Y.  246. 
Where  a  resale  is  ordered  it  must  be  upon  substantially  the  same 
terms  as  the  first  sale,  or  if  materially  different,  the  first  purchaser 
will  be  released  from  liability  for  the  deficiency.  R^S^gs  v. 
Pursell,  74  N.  Y.  370.     Where  a  purchaser  fails  to  complete  the 


634  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 

Art.  5.     Resale,  when  Ordered. 

purchase  and  a  resale  is  directed  by  the  ex  parte  order  of  the 
court,  the  purchaser  is  discharged  from  Hability  to  make  good  a 
deficiency  arising  on  the  second  sale,  and  is  not  subject  to  further 
liabihty  except  to  the  extent  of  his  deposit,  which  is  forfeited,  but 
it  seems  it  would  be  otherwise  if  the  order  had  been  made  upon 
notice  to  the  purchaser.  Ant hon  v.  Bachelor,  16  Civ.  Pro.  R,  304. 
A  sale  will  not  be  set  aside  on  ground  that  the  premises  were 
not  sold  in  parcels,  upon  the  application  of  a  defendant  liable  for 
a  deficiency  where  there  was  no  deficiency.  Shuler  v.  Maxwelly 
38  Hun,  240,  appeal  dismissed,  loi  N.  Y.  657.  A  judicial  sale 
should  not  be  set  aside  for  mere  inadequacy  of  price.  Matter  of 
Rider,  23  Hun,  91  ;  Buschell  v.  Voorhis,  49  How.  247;  Brush  v. 
Shuster,  3  Abb.  N.  C.  73 ;  People  v.  Bond  St.  Sav.  Bank,  53  How. 
336;  Chapman  v.  Boetcher,  27  Hun,  606,  appeal  dismissed,  90 
N.  Y.  692  ;  Lockivood  v.  McGiiirc,  57  How.  266;  Kelloggv.  Hoivell, 
62  Barb.  280;  Wood/mil  w.  Osborne,  2  Edw.  614;  Mott  v.  Walkley, 
3  Edw.  590 ;  Wit  beck  v.  Rozve,  25  How.  403;  Duncan  v.  Dodd,  2 
Paige,  99;  Brown  v.  Frost,  10  Paige,  243;  Le fever  v.  Laraway, 
22  Barb.  167.  Unless  the  inadequacy  of  price  results  from  fraud 
or  a  clear  mistake.  Crane  v.  Lawrence,  7  Week.  Dig.  517;  Odell 
V.  Twomey,  8  Week.  Dig.  165.  But  this  rule  only  applies  to  bona 
yf<^^  purchasers.     Matter  of  Fuller,  35  Hun,  162. 

A  resale  will  not  be  granted  where  it  is  not  pretended  there 
was  any  fraud,  misconduct  or  surprise,  and  an  order  denying  a 
motion  to  set  aside  a  sale  in  foreclosure,  being  in  the  discretion 
of  the  court,  is  not  appealable  in  the  absence  of  any  pretense  that 
such  discretion  has  been  abused.  Knappv.  Conger,  59  N.  Y.  635  ; 
White  V.  Coulter,  3  T.  &  C.  608 ;  Buschel  v.  Voorhis,  49  How.  247; 
Winter  v.  Eckert,  93  N.  Y.  368.  Where  the  purchaser  offers  to 
pay  a  judgment  for  deficiency,  and  no  excuse  is  offered  by  inter- 
ested parties  for  failing  to  attend  the  sale,  a  resale  will  not  be 
ordered.  Comniomvealth  Ins.  Co.  v.  Bowman,  15  Week.  Dig.  416, 
Court  of  Appeals.  But  where  mistakes  or  neglect  to  attend  sale 
are  sufficiently  excused,  the  sale  may  be  set  aside.  Thompson  v. 
Mounts  I  Barb.  Ch.  607;  Williamson  v.  Dale,  3  Johns.  Ch.  290. 
As  to  what  are  and  what  are  not  sufficient  excuses,  see  Marsh  v. 
Ridgway,  18  Abb.  262;  Collier  v.  Whipple,  13  Wend.  226;  Stahl 
V.  Charles,  5  Abb.  348;  Hoppock  v.  Conklin,  4  Sandf.  Ch.  582; 
La7ising  v.  McPherson,  3  Johns.  Ch.  424.  Sale  will  not  be  set 
aside  because  purchaser  had  a  prior  arrangement  with  plaintiff  to 


JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE.  635 

Art.  5.     Resale,  when  Ordered. 

take  back  a  mortgage  if  former  bought.  McLaughlin  v.  Teas- 
dale,  9  Daly,  23.  The  court  may,  in  its  discretion,  order  a  resale 
at  the  instance  of  any  one  whose  rights  are  affected  by  the  sale. 
It  is  not  necessary  the  party  should  have  a  specific  lien  on  the  mort- 
gaged premises.  Goodell  v.  Harrington,  76  N.  Y.  547.  A  resale 
will  not  be  set  aside  because  the  notice  of  sale  was  not  published 
in  all  the  editions  of  the  paper  issued  on  the  days  in  which  it  was 
inserted  ;  Everson  v.  Johnson,  22  Hun,  115;  or  because  advertised 
in  a  paper  not  well  calculated  to  give  information  ;  Wake  v.  Hart, 
12  How.  444;  nor  for  any  irregularity  by  which  it  is  evident  the 
purchaser  cannot  be  injured.  Kniglit  v.  Molony,  4  Hun,  33. 
The  court  may  set  aside  a  sale  where  it  is  not  made  subject  to  a 
prior  incumbrance.  Homoeopathic  Life  Lns.  Co.  v.  Sixbury,  17 
Hun,  424;  M oiler  v.  M oiler,  12  Hun,  674. 

A  motion  for  a  resale  which  was  made  more  than  a  year  after 
the  original  sale,  was  denied,  for  laches,  and  it  is  said  a  judicial 
sale  will  not  be  set  aside  simply  because  the  purchaser  made  a 
good  bargain.  Claflin  v.  Clark,  22  Week.  Dig.  127;  Dcpew  v. 
Dewey,  2  T.  &  C.  515,  appeal  dismissed,  56  N.  Y.  657.  On  a 
petition  to  set  aside  a  sale  where  it  appeared  that  it  was  made 
two  years  before,  and  that  immediately  afterward  the  purchaser 
sued  to  have  the  purchase  declared  in  trust,  but  had  not  pressed 
the  action,  it  was  held  that  after  so  long  acquiescence  the  sale 
would  not  be  set  aside.  Fanners  Loan  &  Trust  Co.  v,  Batikers 
&  Merchants  Telegraph  Co.  6  Supp.  643.  Where  the  petitioner 
did  not  offer  to  bid  for  the  property  on  the  resale  more  than  the 
price  for  which  it  was  sold  and  did  not  show  that  anyone  would 
bid  any  more  and  with  knowledge  of  all  the  material  facts,  had 
delayed  for  nearly  two  years  before  making  the  application,  and 
in  the  meantime  the  property  had  gone  into  the  hands  of  a  new 
corporation  which  had  expended  large  sums  of  money  upon  it,  so 
that  if  a  resale  were  ordered,  it  would  be  impossible  to  restore 
the  parties  to  their  former  possession,  it  was  held  there  was  no 
absolute  leiral  ri<Tht  to  have  the  sale  set  aside,  that  the  court 
below  had  discretion  to  deny  the  application,  and  that,  as  there 
was  no  abuse  of  discretion,  the  Court  of  Appeals  had  no  jurisdic- 
tion to  review  the  order  appealed  from.  Farmers  Loan  &  Trust 
Co.  V.  Bankers  ,  etc.  Ct?.  1 19  N.  Y.  16,  A  delay  of  six  months  to 
move  on  ground  of  inadequacy  of  price  was  held  fatal  in  Lock- 
wood  v.  McGuire,  57  How,  256;  but  in  Crane  v.  Stiger,  2  T.  S:  C. 


636  JUDGMENT   FOR   AND   SALE    OF   REAL   ESTATE. 

Art.  5.     Resale,  when  Ordered. 

577,  it  was  held  a  delay  of  a  year  only  went  to  question  of  terms. 
In  Baker  v.  Baker,  22  Week.  Dig.  137,  it  is  said  that  a  party 
moving  for  a  resale  should  ofTer  security  to  bid  more  on  the  resale 
than  the  amount  the  original  sale  brought.  It  is  held  in  Frost  v. 
Hirschberg,  17  Week.  Dig.  224,  that  delay  in  entering  judgment 
will  not  excuse  a  purchaser  at  a  partition  sale,  particularly  in  the 
absence  of  proof  that  any  loss  has  been  sustained  thereby. 

A  sale  should  not  be  opened  if  conducted  in  conformity  with 
the  rules  of  law  and  direction  of  the  judgment.  Winter  v.  Eckert, 
93  N.  Y.  367.  As  to  what  is  sufificient  cause  for  setting  aside 
sale  in  foreclosure,  in  addition  to  those  mentioned,  see  Haines  v. 
Taylor,  3  How.  206;  Gould  v.  Gager,  24  How.  440 ;  Hirsck 
V.  Livingston,  48  How.  243  ;  Soule  v.  Ludloiv,  "3  Hun,  503  ;  Kingv. 
Morris,  2  Abb.  296;  Back  v.  Crnssell,  2  Abb.  386;  Requa 
V.  Rea,  2  Paige,  339. 

Any  person  whose  rights  are  affected  by  the  sale  may  make  the 
application  for  a  resale.  Kellogg  v.  Hozvell,  62  Barb.  280 ;  May 
V.  May,  1 1  Paige,  201  ;  Gould  v.  Mortimer,  26  How.  167 ;  Brown  v. 
Frost,  10  Paige,  243;  Fuller  \.  Brown,  35  Hun,  165;  American 
his.  Co.  V.  Oakley,  9  Paige,  259;  Shulcr  v.  Maxwell,  38  Hun, 
240;  Goodsell  V.  Harrington,  76  N.  Y.  547.  And  the  application 
should  be  by  motion  in  the  foreclosure  suit ;  see  cases  cited 
above.  Collier  v.  Whipple,  13  Wend.  224;  Nicholl  v.  Nicholl,  8 
Paige,  349;  Requa  v.  Rea,  2  Paige,  339;  McCotter  v.  Jay,  30 
N.  Y.  80.  Where  a  judgment  is  obtained  by  fraud  or  collusion, 
however,  an  action  may  be  maintained  to  set  it  aside,  as  it  is 
ineffectual  to  bar  the  equity  of  redemption,  and  the  sale  falls 
with  it.  Mc Murray  v.  Mc Murray,  66  N.  Y.  175;  citing  Wright 
v.  Miller,  8  N.  Y.  9.  An  action  may  be  brought  to  set  aside  a 
sale  where  it  has  been  fraudulently  conducted  to  the  prejudice  of 
a  party  interested,  even  though  he  may  have  a  concurrent  remedy 
by  motion ;  but  where  the  proceedings  are  entirely  irregular,  and 
free  from  fraud,  and  the  party  is  entitled  to  relief  on  some  mere 
equity,  his  remedy  is  by  motion  in  the  action.  Vandercook  v. 
Cohoes  Savings  Institution,  5  Hun,  641.  And  all  parties  taking 
title  under  the  purchaser  are  subject  to  the  jurisdiction  of  the 
court.  May  v.  May,  11  Paige,  201  ;  Requa  v.  Rea,  2  Paige,  339; 
Caset  V.  Hubbell,  36  N.  Y.  680;  Hale  v,  Clauson,  60  N.  Y.  339. 
Every  defendant  who  has  appeared  is  entitled  to  notice  of  appli- 
cation for  a  resale.     Robinson  v.  Meigs,  10  Paige,  41.     And  such 


JUDGMENT    FOR   AND   SALE   OF    REAL   ESTATE.  637 


Art.  5.     Resale,  when  Ordered. 


application  must  be  promptly  made  or  it  will  be  denied  for  laches. 
Lockwoodv.  McGuire,  57  Hun,  266;  Depew  v.  Dewey,  46  How. 
441;  Fuller  V.  Brown,  35  Hun,  162;  Viele  v.  Judsofi,  15  Hun, 
328.     See  hi  re  Woolsey,  95  N.  Y.  135. 

An  order  setting  aside  the  sale  and  opening  the  judgment  va- 
cates the  title  of  the  purchaser.  Freeman  v.  Munns,  1 5  Abb.  468. 
A  sale  will  be  set  aside  where  it  was  not  made  in  accordance  with 
the  terms  of  the  decree,  and  prejudicial  to  the  interest  of  the 
party  or  purchaser ;  as  where  taxes  and  assessments  were  directed 
to  be  paid  out  of  the  proceeds  and  the  sale  was  made  subject  to 
such  liens.  Hobart  v.  Hobart,  58  Barb.  296.  But  it  will  not  be 
set  aside  on  account  of  irregularities  which  can  be  amended. 
Alvordv.  Beach,  5  Abb.  45 1;  Noble  v.  Cromwell,  26  Barb.  475; 
Herbert  v.  Smith,  6  Lans.  493.  One  who  is  acting  in  a  fiduciary 
capacity  cannot  purchase  the  property;  and,  in  case  he  does  so, 
sale  will  be  set  aside.  Van  Fpps  v.  Van  Epps,  9  Paige,  237; 
Davoue  v.  Fanning,  2  Johns.  Ch.  252  ;  Gardner  v.  Ogden,  22  N.  Y. 
327;  Pease  w.  Creque,  15  Week.  Dig.  15;  Boernm  v.  Schenck,  ^\ 
N.  Y.  182;  Fulton  V.  Whitney,  66  N.  Y.  555;  Bennett  v.  Austin, 
81  N.  Y.  308.  A  resale  may  be  ordered,  upon  complying  with 
terms,  in  the  discretion  of  the  court.  The  innocent  bidder  must 
be  repaid  his  costs  and  expenses,  including  the  deposit  or  percent- 
age paid  by  him  on  the  sale,  expenses  of  investigating  the  title 
and  costs  of  motion  for  repayment,  if  he  is  put  to  a  motion,  and 
this  will  be  paid  out  of  the  fund  or  by  the  plaintiff  upon  the 
ground  that  the  grantors  must  pay  for  the  mistakes  of  the  court. 
Raynor  v.  Selmes,  52  N.  Y.  579.  That  the  purchaser  must  be 
indemnified,  see  Duncan  v.  Dodd,  2  Paige,  99 ;  Knight  v.  Maloney, 
4  Hun,  33;  Muller  v.  Struppmann,  6  Abb.  N.  C.  343. 

Where  a  sale  is  set  aside  for  fraud,  incumbrances  against  the 
purchaser  fall  with  it.  Colby  v.  Roivley,  4  Abb.  361.  On  order- 
ing a  resale,  the  purchaser  at  the  first  sale  is  entitled  to  a  return 
of  his  deposit  with  interest,  and  costs  to  which  he  has  been  put, 
to  be  paid  out  of  the  surplus  moneys.  Morris  v.  Mowatt,  2 
Paige,  586.  An  order  for  a  resale  at  the  risk  of  the  first  purchaser 
will  not  justify  an  action  against  a  stranger  on  the  ground  that 
he  was  the  real  purchaser ;  the  order  concludes  the  parties.  Paine 
V.  Smith,  2  Duer,  298.  If.  on  default  of  the  purchaser,  the 
premises  are  again  sold  without  application  to  the  court  and  pur- 
chased by  the  same  person,  he  is  only  liable  for  the  price  bidden 


638 


JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE. 


Art.  5.     Resale,  when  Ordered. 


at  the  second  sale.  Hotiie  Ins.  Co.  v.  Jones,  45  How.  498.  If 
the  purchaser  on  a  sale  makes  default,  the  deposit  will  be  applied 
to  any  deficiency  on  a  resale.  Willettsv.  VanAlst,  26  How.  325. 
To  hold  a  defaulting  purchaser  liable  on  a  resale,  the  sale  must  be 
on  the  same  terms  as  the  former  one.  Riggs  v.  Pur  sell,  74  N.  Y. 
370;  distinguished,  Taylor  v.  Mayor,  83  N.  Y.  625.  An  order 
requiring  a  purchaser  at  a  judicial  sale  to  pay  the  amount  of  his 
bid  or  damages  resulting  from  failure,  is  to  be  regarded  as  a  judg- 
ment. Lydccker  v.  Smith,  44  Hun,  454.  An  order  granting  or 
directing  a  resale  is  not  appealable  to  the  Court  of  Appeals  unless 
it  involves  a  matter  of  legal  right  beyond  the  question  of  discre- 
tion in  the  court  below.  Howell  v.  Mills,  53  N.  Y.  322;  Fisher 
V.  Hersey,  78  N.  Y.  387;    Winter  v.  Eekcrt,  93  N.  Y.  367 

Misapprehension  respecting  an  adjournment  of  the  sale  on  the 
part  of  a  judgment  creditor  is  suf^cient  ground  for  setting  aside 
the  adjourned  sale.  Corwith  v.  Barry,  6g  Hun,  113,  53  St.  Rep. 
53,  23  N.  Y.  Supp.  200.  While  mere  inadequacy  of  price  on  a 
foreclosure  sale  is  not  sufficient  ground  for  a  resale,  such  inade- 
quacy, coupled  with  any  fraud  or  surprise,  will  have  great  weight 
on  an  application  therefor.  Bonnet  v.  Brown,  36  St.  Rep.  320, 
13  Supp.  395. 

On  a  motion  to  set  aside  a  sale  on  the  ground  that  the  price 
bid  was  inadequate,  the  fact  of  inadequacy  should  be  clearly 
established  and  the  motion  will  not  always  be  granted  even  when 
it  is  shown  that  the  appellant  had  notified  intended  bidders  the 
sale  would  not  take  place  at  the  time  advertised,  who  were  thereby 
kept  away  from  the  sale,  the  appellant  having  obtained  an  order 
for  a  stay  of  proceedings,  which  was,  however,  vacated  before  the 
sale.  Von  Stade  v.  Le  Conipte,  21  St.  Rep.  240.  A  resale  may 
be  ordered  where  the  price  was  inadequate  and  the  terms  of  sale 
required  payment  of  twenty-five  dollars  for  auctioneer's  fees. 
Arnold  v.  Egbert,  7  Week.  Dig.  206. 

The  Court  of  Appeals  will  not  interfere  on  the  ground  of  inade- 
quacy of  price.  White  v.  Coulter,  59  N.  Y.  629;  see,  also, 
McEwen  v.  Butts,  20  Supp.  503.  Evidence  tending  to  show  the 
insanity  of  a  mortgagor  at  the  time  of  sale  and  inadequacy 
of  price  was  held  insufficient  to  authorize  a  resale,  and  the 
order  made  upon  such  motion  permitting  the  judgment  and 
sale  to  stand,  but  directing  the  plaintiff,  as  purchaser,  to  account 
for  the   profits  from    the  possession   and  a  resale,  was  held  un- 


JUDGMENT   FOR   AND    SALE   OF    REAL   ESTATE.  639 

Art.  5.     Resale,  when  Ordered. 

— ■         .      .      ..  I  ■  . ■     -I     -— ■  ■— -.        I  ^ 

authorized.     Provost  \.  Rocdieger,  32  St.  Rep.  i  loi  ;  s.  c.  10  N.  Y. 
Supp.  812. 

Where  property  consisting  of  several  lots  is  sold  in  one  parcel, 
although  not  so  directed  by  a  judgment,  and  it  appears  that  a 
greater  sum  would  have  been  realized  by  a  sale  in  parcels,  a  resale 
will  be  ordered.  Larkinv.  Broiity,  39  St.  Rep.  879,  15  Supp.  509. 
Payment  by  the  owner  of  the  equity  after  the  postponement  of 
the  sale  as  expenses,  should  not  be  applied  to  the  reduction  of 
the  amount  of  the  decree,  nor  is  that  fact  a  sufficient  ground  for  a 
resale.  Holland  Trust  Co.  v.  Hogan,  44  St.  Rep.  577,  17  Supp, 
919. 

There  must  be  some  legal  reason  for  setting  aside  the  sale. 
Hotchkiss  V.  Clifton  Air  Cure,  4  Keyes,  170.  That  purchaser's 
wife  has  dower  in  property,  is  no  reason  for  resale.  Knight  v. 
Maloncy,  4  Hun,  33;  Watson  v.  Church,  3  Hun,  80.  A  purchaser 
at  a  foreclosure  sale  has  a  right  to  demand  that  a  defect  as  to  the 
name  of  a  party  be  corrected  by  amendment  before  he  takes 
title.  Van  Hatten  v.  Scholl,  i  App.  Div.  32,  36  N.  Y.  Supp.  771, 
72  St.  Rep.  2,  25  Civ.  Pro.  R.  247. 

Where  the  contention  was  as  to  the  interest  of  a  defendant  on 
foreclosure  in  the  proceeds,  the  fact  that  his  default  was  opened 
to  litigate  that  matter,  will  not  affect  the  validity  of  the  sale 
whether  the  purchaser  had  notice  of  such  claim  at  the  time  of 
sale  or  not.  Waugh  v.  Bailey,  4  Supp.  817.  Nor  does  the  fact 
that  on  judgment  on  default  interest  was  included  which  plaintiff 
had  paid  on  a  prior  mortgage,  as  the  mortgagor  could  only  have 
the  judgment  set  aside  to  the  amount  of  such  interest.  Hutchin- 
son  V.  Wall,  4  Supp.  717. 

The  failure  of  an  auctioneer  at  a  judicial  sale  to  disclose  the 
fact  that  he  is  a  party  to  the  suit  and  interested  in  the  property 
sold,  renders  the  sale  voidable  and  subject  to  be  set  aside  at  the 
instance  of  the  purchaser  although  there  was  no  actual  fraud  or 
bad  faith  and  the  auctioneer's  interest  was  only  that  of  tenancy 
by  the  curtesy.      Smith  v.  Harrigan,  40  St.  Rep.  292. 

At  a  sale  the  obligation  of  the  purchasers  depends  not  on  decla- 
rations made  by  the  auctioneer  but  on  the  written  terms  of  sale 
and  the  memorandum  affixed  thereto  and  signed  by  the  pur- 
chaser. Where  the  terms  of  sale  were  described  in  a  printed 
notice  of  the  sale  annexed  to  the  terms  of  sale,  purchasers  were 
held  to  be  bound  by  them,  and  a  purchaser  at  a  judicial  sale 


640  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 

Art.  5.     Resale,  when  Ordered. 

cannot  demand  a  perfect  and  unincumbered  title  unless  the  terms 
of  sale  call  for  it.  Such  purchasers  are  not  entitled  to  rents  of 
premises  between  the  time  of  purchase  and  the  time  of  delivery  of 
deeds  to  them.      WicJivian  v.  Aschpurzvis,  14  Civ.  Pro.  R.  88. 

A  purchaser  will  be  relieved  where  the  terms  of  sale  contained 
a  statement  that  a  prior  mortgage  subject  to  which  the  sale  was 
made  had  eighteen  months  to  run,  when,  in  fact,  it  was  due  and 
under  foreclosure  at  the  time  of  the  sale.  Bradley  v.  Leahy,  54 
Hun,  390;  S.  C.  7  Supp.  461,  27  St.  Rep.  321.  Where  previous 
to  a  sale  part  of  the  owners  of  the  equity  of  redemption  arranged 
with  plaintiff  that  he  should  bid  off  the  property  for  them  at  a 
fixed  price,  but  just  before  the  sale  declined  so  to  do,  and  notified 
them  he  would  bid  for  himself,  becoming  a  purchaser  at  a  consider- 
able less  price  than  previously  agreed  on,  it  was  held  that  a 
resale  was  properly  directed.  N.  Y.  Eastern  Christian  &  Benevo- 
lent Missionary  Society  v.  Bishop,  8  Supp.  60. 

Where  the  owner  of  a  right  of  way  which  had  been  granted 
after  the  land  had  been  mortgaged,  offered  to  bid  enough  on  the 
sale  to  make  the  judgment  and  costs  out  of  the  land  exclusive  of 
his  right  of  way,  an  order  to  that  effect  was  sustained.  Case  v. 
Mannis,  33  St.  Rep.  44,  19  Civ.  Pro.  R.  296,  11  Supp.  243, 
affirmed,  without  opinion,  123  N.  Y.  661.  An  order  of  reference 
in  foreclosure  directing  the  referee  to  examine  the  plaintiff  as  to 
the  truth  of  the  allegations  in  the  complaint  which  alleged  pay- 
ments on  the  mortgage,  was  held  sufficient.  Hatfield  v.  Malcolm, 
71  Hun,  51,  53  St.  Rep.  863,  24  Supp.  596. 

The  papers  on  motion  for  a  resale  are  properly  served  on  the 
attorney  for  plaintiff  where  plaintiff  w^as  the  purchaser,  although 
he  has  conveyed  the  property  to  a  third  person.  Bonnett  v.  Brown, 
13  Supp.  395.  Where  there  are  no  legal  errors  in  the  sale  of 
mortgaged  premises  under  foreclosure,  and  the  sale  was  conducted 
with  strict  regularity,  an  application  for  a  resale  is  addressed  to  the 
discretion  of  the  court  and  relief  is  asked  as  a  matter  of  favor. 
Guggcnheimer  v.  Sayre,  21  St.  Rep.  255;  Wollung  v.  Aikeji,  17 
Civ.  Pro.  R.  318. 

A  purchaser  who  submits  himself  to  the  jurisdiction  of  the 
court  in  which  the  sale  is  had,  must  move  in  such  court  and  can- 
not bring  an  equitable  action  in  another  court.  Mnehlberger  v. 
Schilling,  3  Supp.  705;  s.  c.  19  St.  Rep.  i.  The  court  has  no 
power  to  allow  a  purchaser  to  complete  his  purchase   as  to  the 


JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE.  64I 

Art.  6.     Rights  of  Purchasers  and  when  Sale  Enforced. 

part  as  to  which  he  claims  title  is  unquestioned  and  relieve  him  as 
to  another  part  for  a  pro  rata  consideration.  Thompson  v. 
Schneider,  38  Hun,  504,  appeal  dismissed,  102  N.  Y.  733. 

An  order  denying  motion  to  open  resale  on  foreclosure  and 
allow  the  purchaser  on  the  first  sale  to  complete  his  purchase,  is  a 
discretionary  one,  and  when  made  by  the  county  court  is  not 
appealable  to  the  Supreme  Court.  Where  the  referee  correctly 
stated  the  amount  due  on  an  incumbrance  on  the  premises,  but 
the  purchaser,  ascertaining  the  incumbrance  apparently  to  be  for 
a  greater  sum,  refused  to  complete,  and  the  premises  were  on  the 
same  day  sold  for  a  less  sum,  and  the  purchasers  on  the  resale 
completed  the  purchase,  received  the  deed,  and  the  report  was 
subsequently  confirmed,  it  was  Jicld  that  a  motion  to  open  the 
latter  sale  was  properly  denied.  Judson  v.  O^Comiell,  37  St. 
Rep.    581. 

ARTICLE    VI. 
Rights  of  Purchasers  and  When  Sale  Enforced. 

A  purchaser  at  a  judicial  sale  is  entitled  to  a  title  free  from 
reasonable  doubt.  He  will  only  be  compelled  to  take  a  market- 
able title.  Shrivcr  v.  Shriver,  86  N.  Y.  576;  Fleming  w.  Biirn- 
kani,  100  N.  Y.  i;  Smyth  v.  McCool,  22  Hun,  595;  Ingcrsoll  v. 
Mangam,  24  Hun,  202;  S.  C.  84  N.  Y.  622.  But  the  defect  in 
the  title  must  be  a  reasonable  one  and  such  as  affects  the  value 
of  the  property.  Weeks  v.  Tomes,  16  Hun,  349,  aflfirmcd,  "j^ 
N.  Y.  601  ;  Smith  v.  Wells,  69  N.  Y.  600;  Jordan  v.  Poillon,  yy 
N.  Y.  518;  Hellreigel  v.  Manning,  97  N.  Y.  56.  A  purchaser 
will  not  be  compelled  to  take  title  when  a  claim  exists  in  favor  of 
persons  who  are  not  parties  to  the  action  which  might  impair  the 
value  of  the  real  estate  by  casting  a  cloud  upon  the  title  or  by 
subjecting  the  purchaser  to  the  risk  of  a  contest  at  law.  Argall 
V.  Raymond,  20  Hun,  267;  German  Savings  Bank  v.  Muller,  10 
Week.  Dig.  67;  Fryer  v.  Pock  feller,  <Si  N.  Y.  268;  Monarque  v. 
Monarqne,  80  N.  Y.  320;  Lee  v.  Lee,  27  Hun,  i;  People  v. 
Knickerbocker  Life  Lis.  Co.  66  Hew.   115. 

A  purchaser  will  net  be  relieved  because  the  judgment  under 
which  the  sale  was  made  is  erroneous.  If  the  court  had  jurisdic- 
tion he  is  protected.  De  Forest  v.  Farley,  62  N.  Y.  628;  Darwin 
V.  Hatfield,  4  Sandf.  468.  A  purchaser  will  not  be  relieved  from 
[Special  Actions  —  41.] 


642  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 


Art.  6.     Rights  of  Purchasers  and  when  Sale  Enforced. 

his  purchase  by  reason  of  a  claim  that  his  wife's  dower  is  not 
foreclosed  where  she  acquires  the  same  right  by  his  purchase; 
Knight  V.  Maloncy,  4  Hun,  33 ;  nor  because  the  dividing  line 
would  intersect  a  small  building  used  as  a  house.  Knapp  v. 
Conger,  59  N.  Y.  635.  Query,  whether  a  purchaser  should  be 
compelled  to  take  a  title  depending  on  adverse  possession, 
it  seems  that  the  purchaser  of  the  right,  title  and  interest 
of  a  person  cannot  be  relieved  from  his  purchase.  Mott  v. 
Mott,  68  N.  Y.  246.  Where  much  time  has  elapsed  after 
a  purchaser  has  bought,  and  before  title  is  perfected,  he  will 
not  be  compelled  to  comply  with  the  terms  of  the  sale.  Rice  v. 
Barrett,  99  N.  Y.  403.  The  fact  that  a  lot  sold  under  a  judg- 
ment of  foreclosure  was  described  in  the  mortgage  by  a  false 
measurement,  Jield,  not  an  objection  which  discharged  the  pur- 
chaser where  the  description  in  the  mortgage  also  referred  to  the 
map  on  file  in  the  register's  office,  on  which  the  true  measurement 
appeared.  Wagner  v.  Hodge,  34  Hun,  524;  citing  Peck  v.  Mal- 
lanis,  10  N.  Y.  509;  Brookvian  v.  Kurzman,  94  N.  Y.  272. 

Where  the  transactions  conveying  title  appeared  on  their  face 
to  be  fraudulent,  held,  that  the  court  would  relieve  a  purchaser 
at  a  judicial  sale  from  a  title  so  tainted  with  doubt.  People  v. 
Globe  Mutual  Ins.  Co.  33  Hun,  393.  Where  a  purchaser  at  a  par- 
tition sale  alleges  defective  title  to  a  portion  of  the  premises,  the 
court  has  no  power  to  allow  time  to  complete  his  purchase,  as  to 
the  unobjectionable  part  of  the  property  sold  for  ^l pro  rata  con- 
sideration. Thompson  v.  Sehmieder,  38  Hun,  504;  appeal  dis- 
missed, 102  N.  Y.  733.  A  purchaser  at  a  partition  sale  will  not 
be  relieved  by  failure  to  bring  in,  as  parties  to  the  action,  de- 
visees under  a  Avill,  the  provision  in  whose  favor  is  void;  as  creat- 
ing a  perpetuity.  Rice  v.  Barrett,  102  N.  Y.  161.  A  sale  is  not 
void  because  of  a  disregard  of  ^  1533,  as  to  sale  in  action  by 
remainderman,  if  the  court  has  jurisdiction  of  the  action  and  the 
parties.  Prior  v.  Prior,  4.1  Hun,  613,  citing  Croniivell  v.  Hull, 
97  N.  Y.  209.  But  in  Sclien  v.  Lehning,  31  Hun,  183,  it  was  held 
that  a  purchaser  would  not  be  compelled  to  complete  title  in  such 
a  case.  Where  there  is  a  misstatement  as  to  lease  or  incum- 
brance on  the  property,  the  purchaser  is  relieved.  Riser  v.  Lock- 
wood,  30  Hun,  6;  Loekman  v.  Reilley,  29  Hun,  434;  Beckenbiirgh 
V.  Nally,  32  Hun,  161. 

An  assessment  for  a  local  improvement,  which  is  invalid,  is  not 


JUDGMENT   FOR   AND    SALE   OF    REAL    ESTATE.  643 

Art.  6.     Rights  of  Purchasers  and  when  Sale  Enforced. 

such  an  incumbrance  as  will  relieve  a  purchaser.  Chase  v.  Chase, 
95  N.  Y,  373.  A  purchaser  will  be  relieved  from  his  bid,  if, 
intermediate  the  sale  and  delivery  of  the  deed  the  premi.ses  are 
materially  injured  by  fire.  Until  that  time  they  are  at  the  risk 
of  the  owner  of  the  equity  of  redemption.  Mut.  L.  his.  Co.  v. 
BalcJi,  4  Abb.  N.  C.  200.  A  purchaser  will  not  be  compelled  to 
take  a  doubtful  title,  as  where  there  is  an  inchoate  right  of  dower 
in  the  premises,  unknown  to  the  purchaser  at  the  time  of  sale,  if 
the  sale  was  not  made  at  the  purchaser's  risk;  Merchants  Bank  v . 
Thompson,  55  N.  Y.  7;  People  v.  Knickerbocker  Life  Ins.  Co.  66 
How.  115;  or  where  he  cannot  be  given  possession.  Hirscli  v. 
Livingston,  3  Hun,  9.  He  is  entitled  to  a  satisfactory  record 
title.  Thorn  v.  SJieil,  15  Abb.  (N.  S.j  81.  The  purcha.ser  can- 
not impeach  the  judgment  in  foreclosure.  Wallace  v.  Manna,  1 1 
Week.  Dig.  213;  Lyon  v.  Lyon.,  6j  N.  Y.  250;  Watson  v.  Churchy 
3  Hun,  80.  A  purchaser  bidding  with  notice  of  defects  of  title 
will  not  be  relieved.  Rogers  v.  James,  11  Week.  Dig.  574; 
Coates  V.  Fairchild,  14  Week.  Dig.  189;  affirmed,  89  N.  Y.  631  ; 
Friedrick  v.  Brezvster,  13  Week.  Dig.  546;  Riggs  v.  Purstcll,  66 
N.  Y.  193.  Where  a  referee,  appointed  to  sell  at  the  request  of 
the  purchaser  and  for  his  accommodation,  applies  the  sum  received 
on  the  sale  in  different  order  from  that  directed  by  the  decree,  the 
purchaser  cannot  be  heard  to  complain  of  the  referee's  action. 
Easton  v.  Picker sgell,  75   N.  Y.  599. 

Where  title  under  foreclosure  was  objected  to  because  the  order 
of  the  court,  authorizing  execution  of  the  mortgage,  was  void  as 
against  devisees,  held,  title  was  rendered  good  by  a  release  of  the 
devisees.  Grady  v.  Ward,  20  Barb.  543.  Mere  lapse  of  time, 
after  the  time  of  sale,  is  no  ground  for  relieving  the  bidder;  the 
delay  must  have  been  unreasonable  or  caused  material  injury. 
Merchants  Bank  v.  Thompson,  55  N.  Y.  7.  A  delay  of  two  years 
was  held  not  such  laches  by  a  purchaser  moving  to  compel  a 
referee  to  comply  with  the  terms  of  sale  as  to  defeat  his  remedy. 
Weseman  v.  Wingrove,  85  N.  Y.  353.  The  remedy  of  the  pur- 
chaser, where  the  deed  is  not  ready  by  the  time  fixed,  is  to  move 
for  leave  to  pay  the  money  into  court  or  compel  the  completion 
of  the  sale.  Clason  v.  Corley,  5  Sandf.  447.  Where  a  person 
refuses  to  complete  the  purchase  of  property  he  becomes  liable 
for  deficiency  upon  a  resale  for  taxes  imposed  thereon  ad  interim. 
Riihc  V.  Laze,  8  Hun,  251. 


644  JUDGMENT    FOR   AND    SALE    OF   REAL   ESTATE. 


Art.  6.     Rights  of  Purchasers  and  when  Sale  Enforced. 


Where  the  court  upon  application,  without  notice  to  the  pur- 
chaser, grants  a  resale  after  the  purchaser  has  made  default,  he 
is  discharged  from  liability  to  make  good  the  deficiency.  It 
seems  where  the  application  is  made  upon  notice  to  the  purchaser 
the  rule  is  otherwise.  Anthon  v.  Batchelor,  22  Abb.  N.  C.  423; 
S.  C.  5  Supp.  798,  16  Civ.  Pro.  R.  304. 

A  purchaser  is  not  obliged  to  accept  the  title  where  the  premi- 
ses are  in  the  possession  of  a  tenant  claiming  under  a  lease  where 
such  person  was  not  a  party  to  the  suit,  nor  is  it  any  answer  that 
the  lease  was  not  made  by  any  person  having  authority  to  make 
it.  The  purchaser  is  entitled  to  possession  of  the  premises  with- 
out being  obliged  to  take  proceedings  for  the  removal  of  a  ten- 
ant who  is  merely  a  squatter  and  could  be  ejected  summarily. 
The  purchaser  must  be  able  to  get  possession  by  virtue  of  his 
decree,  and  if  proceedings  outside  the  decree  are  necessary'  to 
secure  him  such  possession,  he  is  not  required  to  take  them  or  to 
complete  his  purchase.     Kopp  v.  Kopp,  48  Hun,  532. 

A  purchaser  will  not  be  required  to  complete  his  purchase  as 
against  an  outstanding  mortgage  although  it  was  not  mentioned 
in  either  conveyance  of  the  property,  and  an  afifidavit  is  presented 
that  for  ten  years  before  his  death  the  deceased  owner  claimed  it 
was  free  from  all  incumbrances.  Mead  v.  Mead,  5  Supp.  302. 
A  purchaser  cannot  be  compelled  to  take  a  title  affected  by  rea- 
son of  the  omission  of  necessary  parties  to  the  action  because  of 
the  fact  that  he  was  a  party  to  such  action  where  he  had  no 
interest  in  the  land  and  no  adjudication  was  made  with  reference 
to  it.  The  fact  that  the  purchaser  knew  of  the  omission  of  such 
parties  does  not  change  the  rule.  Miller  v.  Wright,  109  N.  Y. 
194.  Evidence  insufficient  to  relieve  the  purchaser  at  a  fore- 
closure sale  from  his  purchase  on  a  claim  that  the  owner  of  the 
fee  was  not  served.  O'Connor  v.  Felix,  147  N.  Y.  614,  42  N.  E. 
Rep.  269,  71  St.  Rep.  258,  affirming  87  Hun,  179,  33  N.  Y.  Supp. 

1074,  67  St.  Rep.  777. 

Where  service  by  publication  is  not  valid,  purchaser  will  be 
relieved.  Bixby  v.  Smith,  3  Hun,  60.  The  court  has  power,  on 
motion,  to  relieve  purchaser  on  sale  under  judgment  in  a  fore- 
closure suit,  and  where  facts  are  shown  suf^cient  to  call  upon  the 
court  to  exercise  its  discretion,  its  determination  is  not  review- 
able in  the  Court  of  Appeals.  Crocker  v.  Golner,  135  N.  Y.  662. 
The  purchaser  is  entitled  to  a  perfect  title  in  law  and  in  equity. 


JUDGMENT    FOR   AND    SALE   OF   REAL   ESTATE.  645 


Art.  6.     Rights  of  Purchasers  and  when  Sale  Enforced. 


Otherwise  he  may  refuse  to  complete  the  purchase  unless  the  title 
can  be  made  good  immediately.  Jackson  v.  Edwards,  22  Wend. 
498,  3  Edw.  428.  The  purchaser  need  not  take  a  doubtful  nor 
seriously  clouded  title.     Argall  v.  Raynor,  20  Hun,  267. 

Purchaser  was  relieved  in  Hecker  v.  Sexton,  6  St.  Rep.  680,  on 
account  of  omission  to  join  as  a  party  a  person  shown  to  be  liv- 
ing and  entitled  to  an  estate  by  the  curtesy  in  an  undivided  interest. 
Where  the  purchaser  supposed  he  was  buying  a  lot  of  eighty- 
nine  acres,  and  bought  another  of  three  acres,  under  an  honest 
misapprehension,  and  at  once  applied  for  relief,  the  sale  was  open. 
The  utmost  fairness  must  be  observed  in  judicial  sales,  and  the 
purchaser  will  not  be  compelled  to  complete  his  purchase  when 
he  has  bid  under  an  honest  misapprehension  and  at  once  applies 
for  relief.  Dunn  v.  Herbs,  56  Hun,  457,  31  St.  Rep.  476,  10 
Supp,  34. 

Where  the  purchaser  makes  a  cash  payment  and  assigns  his  bid 
with  the  understanding  that  the  assignee  is  to  procure  a  loan  to 
complete  the  payment,  such  assignee  acquires  no  title  to  the  cash 
paid.  Flint  v.  George,  8  Supp.  221.  There  is  no  warranty  of 
title  at  any  judicial  sale,  and  purchasers  who  pay  their  money  do 
so  at  their  own  peril.      Wallace  v.  Berdell,  41  Hun,  444. 

Before  it  can  be  established  that  the  purchaser  on  foreclosure 
took  the  property  as  security  only,  evidence  must  be  given  that 
is  clear,  unequivocal  and  convincing.  Lezuis  v.  Diiane,  69  Hun, 
28,  52  St.  Rep.  818,  23  Supp.  433,  citing  Erwin  v.  Curtis,  43 
Hun,  292;  Ensign  v.  Ensign,  120  N.  Y.  655.  A  grantee  in  pos- 
session under  an  unrecorded  deed  who  was  not  made  a  party  in 
foreclosure  cannot  be  removed  and  possession  given  to  the  pur- 
chaser by  any  proceeding  in  the  action.  IVelsli  v.  Schoen,  59 
Hun,  356,  36  St.  Rep.  538,  13  Supp.  71. 

A  valid  and  sufficient  deed  is  one  in  form  to  give  the  purchaser 
as  good  a  title  as  it  is  in  the  power  of  the  referee  to  give.  Eas- 
ton  V.  Pickersgill,  55  N.  Y.  310.  A  purchaser  is  entitled  to  iiis 
deed  irrespective  of  the  rights  of  a  third  part\-  under  an  alleged 
contract  by  such  purchaser  to  reconvey.  Initcr  v.  Lyo)i,  2  St. 
Rep.  505. 

Where  the  sole  plaintiff  died  after  the  report  of  the  referee 
appointed  to  compute  the  amount  due,  it  was  held  that  the  entry 
of  judgment  thereafter  in  the  name  of  the  original  plaintiff  and  a 
sale  without   reviving  the  action  by  the  personal  representatives 


646  JUDGMENT   FOR   AND    SALE   OF   REAL    ESTATE. 

Art.  6.     Rights  of  Purchasers  and  when  Sale  Enforced. 

were  mere  irregularities,  which  would  not  defeat  the  title. 
Smith  V.  Joyce,  11  Civ.  Pro.  R.  257.  A  purchaser  will  not  be 
relieved  because  the  judgment  allowed  the  plaintiff  the  amount 
of  interest  which  he  had  paid  upon  prior  mortgages,  which  sum 
had  not  been  claimed  in  the  complaint.  Hiitchinson  v.  Wall,  56 
Supr.  104;  S.  c.  4  N.  Y.  Supp.  717. 

It  is  no  objection  to  the  title  acquired  on  foreclosure  sale  that 
the  referee  sold  more  property  than  was  required  to  pay  plaintiff, 
where  the  owner  of  the  equity  makes  no  objection  but  has  per- 
mitted the  proceedings  to  go  on  to  a  reference  as  to  the  surplus 
arising  from  the  sale  and  the  report  of  sale  has  been  confirmed 
and  all  parties  to  the  action  thereby  estopped.  SteinJiardt  v. 
CiinningJiavi,  55  Hun,  375  ;  S.  C.  8  N.  Y.  Supp.  627.  29  St.  Rep.  162. 

The  objection  by  a  purchaser  that  the  property  was  not  suffi- 
ciently described  in  the  proceedings,  was  held  to  be  obviated  by 
the  affidavit  of  the  surveyor,  that  there  was  no  difficulty  in  iden- 
tifying the  property  in  question  from  the  description  given  in  the 
judgment,  and  the  objection  that  the  bond  and  mortgage  were 
not  produced  before  the  referee,  was  held  to  be  met  by  proof 
that  they  had  been  duly  executed  and  delivered,  that  no  part  of 
the  debt  had  been  paid,  and  that  the  original  papers  were  lost, 
nor  does  the  fact  that  the  notice  of  sale  was  published  in  the 
second  edition  of  a  newspaper  afford  a  valid  objection  to  the 
title,  nor  is  it  a  valid  objection  to  the  sale  that  it  was  made  in 
the  county  of  Kings  by  the  sheriff,  where  all  parties  consented 
except  one  absent  defendant.  Abbott  v.  Curraii,  20  Week.  Dig. 
344,  affirmed,  98  N.  Y.  665. 

A  purchaser  will  not  be  relieved  from  purchase  of  a  second 
parcel  on  the  ground  that  the  first  parcel  realized  more  than 
enough  to  satisfy  the  mortgage,  where  there  are  other  subsequent 
incumbrances  which  will  exceed  the  proceeds,  and  neither  the 
holder  of  the  subsequent  mortgage  or  the  owner  of  the  mort- 
gaged lands  or  the  purchaser  object.  Andrews  v.  CMahoney, 
112  X.  Y.  567,  affirming,  17  St.  Rep.  686. 

Purchaser  will  not  be  relieved  on  account  of  irregularities  in 
the  proceedings  that  may  be  corrected,  or  where  the  provisions 
of  the  judgment  as  to  which  he  claims  will  not  affect  his  title. 
Gaskin  v.  Anderson,  55  Barb.  259,  42  N.  Y.  186.  He  will  not  be 
compelled  to  take  a  worthless  or  incumbered  title.  McGown  v. 
Wilkins,  i  Paige.  120.      He  must  complete  his  sale  if  the  mort- 


JUDGMENT   FOR  AND    SALE   OF   REAL   ESTATE.  647 

Art.  6.     Rights  of  Purchasers  and  when  Sale  Enforced. 

gagor  had  a  good  title  by  adverse  possession.  Grady  v.  Ward, 
20  Barb.  543.  A  purchaser  will  not  be  relieved  on  account  of 
defects  in  the  title  which  he  had  noticed  and  with  reference  to 
which  he  made  his  bid.      Stephais  v.  Hwnphrcys,  73  Hun,  199. 

A  purchaser  at  a  foreclosure  sale  will  not  be  relieved  from  his 
purchase  because  of  a  mere  claim  by  the  mortgagor  that  he  was 
not  served  with  process.  O'Connor  v.  Felix,  87  Hun,  179,  33 
N.  Y.  Supp.  1074,  67  St.  Rep.  'jj'j.  A  delay  of  four  years  in 
seeking  to  set  aside  a  foreclosure  sale  is  such  laches  as  will  bar  in 
equity.  Quinn  v.  Jcnks,  88  Hun,  428,  34  Supp.  962,  69  St. 
Rep.  130.  The  purchaser  was  not  relieved  when  there  was  no  way 
of  access  to  the  land  except  over  the  land  of  others  and  purchaser 
knew  the  fact;  ncr  because  a  deed  in  the  chain  cf  title  is  net 
recorded  if  it  is  in  existence.  Coates  v.Fairchild,  14  Week.  Dig. 
180,  affirmed,  89  N.  Y.  631. 

A  purchaser  who  bids  at  a  foreclosure  sale,  subjects  himself  to 
the  jurisdiction  of  the  court  and  may  be  compelled  to  complete 
his  purchase  by  an  order  of  the  court,  and  by  process  for  con- 
tempt if  necessary.  Andrcius  v.  O'Mahoney,  112  N.  Y.  567.  An 
inaccurate  description  of  the  premises  is  cured  by  a  reference  to 
the  deed  of  the  mortgagor  which  gave  a  correct  description,  and 
a  purchaser  acquires  title  to  the  premises  described  in  the  deed 
although  the  complaint,  judgment  and  referee's  deed  followed 
the  description  in  the  mortgage  and  omitted  the  reference  to  the 
deed.  Bernstein  v.  Nealis,  144  N.  Y.  347,  39  N.  E.  Rep. 
328,  63  St.  Rep.  638,  reversing  65  Hun,  619,  47  St.  Rep.  239,  19 

Supp.  739. 

Where  the  complaint  alleges  that  the  mortgage  was  given  m 
pursuance  of  a  power  of  sale  in  the  will  and  the  necessary  parties 
are  before  the  court,  the  judgment  is  conclusive  and  a  purchaser 
takes  a  good  title.  Roarty  v.  McDermott,  146  N.  Y.  296,  41 
N.  E.  Rep.  30,  66  St.  Rep.  654,  reversing  84  Hun,  527,  69  St. 
Rep.  753,  32  Supp.  853.  A  motion  to  set  aside  a  judgment  of 
foreclosure  by  default  and  a  sale  of  the  premises  should  be  denied 
where  defendant  does  not  dispute  the  validity  of  the  conveyance, 
makes  no  afifidavit  of  merits  and  shows  nothing  to  indicate  that 
he  has  been  injured  by  the  judgment  and  sale.  Lester  v.  Mann, 
5  N.  Y.  Supp.  513. 

Failure  to  publish  notice  of  postponement  of  sale   until  after 
the  adjourned  day,   does  not    constitute  a  jurisdictional  defect 


648  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 


Art.  7.     Payment  of  Moneys  Arising  from  Sale  into  Court  and  how  Paid  Out. 

available  to  a  purchaser  more  than  two  years  after  the  confirma- 
tion of  the  sale  where  no  objection  was  made  by  any  of  the  par- 
ties. Bechstein  v.  ScJmltz,  45  Hun,  191;  s.  c.  19  Abb.  N.  C. 
168.  But  it  was  held  on  appeal,  120  N.  Y.  168,  that  the  omis- 
sion to  publish  notice  of  an  adjourned  sale  is  not  regular  and 
affords  good  ground  for  setting  aside  of  sale,  but  that  it  may 
be  waived  by  the  parties  by  delaying  to  object  to  the  referee's 
report  of  sale  when  confirmed  upon  due  notice.  See  Stearits  v. 
Welsh,  7  Hun,  676. 

ARTICLE    Vn. 

Payment  of  Moneys  Arising  From  Sale  into  Court  and 
How  Paid  Out.     Rules  68,  69. 

Chancery  Rule  180.  Investment  of  funds  paid  into  court. 

"Whenever  a  party,  as  tenant  for  life,  or  by  the  curtesy  or  in  dower,  is 
entitled  to  the  annual  interest  or  income  of  any  sum  paid  into  court  and  invested 
in  permanent  securities,  such  parties  shall  be  charged  with  the  expense  of  invest- 
ing such  sum  and  of  receiving  and  paying  over  the  interest  or  income  thereof; 
but  if  such  party  is  willing  and  consents  to  accept  a  gross  sum  in  lieu  of  such 
annual  interest  or  income  for  life,  the  same  shall  be  estimated  according  to  the 
then  value  of  an  annuity  of  six  per  cent  on  the  principal  sum  during  the  probable 
life  of  such  person,  according  to  the  Portsmouth  or  Northampton  Tables.  And 
where  money  belonging  to  an  infant,  or  an  absentee,  or  to  an  unknown  owner, 
is  brought  into  court  for  his  benefit  under  a  final  decree  in  partition,  if  no  direc- 
tion for  the  investment  thereof  is  contained  in  the  decree;  and  the  money  is  not 
applied  for  within  six  months  thereafter,  it  shall  be  the  duty  of  the  register, 
assistant  register  or  clerk  with  whom  the  same  is  deposited,  and  without  any 
special  order  for  that  purpose,  to  cause  it  to  be  invested  in  the  public  stocks,  or 
other  permanent  securities,  or  in  the  New  York  Life  Insurance  and  Trust  Com- 
pany, to  accumulate  for  the  benefit  of  the  party  entitled  thereto. 

"  He  may  also  in  like  manner  reinvest  the  income  of  such  money  from  time  to 
time,  without  any  special  order  for  that  purpose,  whenever,  in  his  opinion,  the 
amount  or  such  income  is  sufficient  to  render  an  investment  thereof  proper  and 
beneficial  to  the  person  interested  therein. 

"  And  where  money  is  brought  into  court  upon  the  sale  of  infant's  estate  by  a 
special  guardian,  if  the  infant  will  not  arrive  at  age  within  six  months  thereafter 
it  shall  be  the  duty  of  the  register,  assistant  register  or  clerk  to  whose  credit  such 
money  is  deposited  in  bank,  without  any  special  order  of  the  court  for  that  pur- 
pose, to  deposit  such  money  in  the  trust  company,  to  accumulate  or  to  invest  the 
same  in  the  public  stocks  of  this  State  or  of  the  United  States,  or  to  invest  it 
upon  bond  and  mortgage,  upon  unincumbered  real  estate  of  double  the  value, 
exclusive  of  buildings,  payable  when  the  infant  becomes  of  age,  or  sooner  if 
required,  to  be  paid  by  order  of  the  court,  with  interest;  to  be  paid  annually  or 
semi-annually,  and  to  reinvest  the  same  from  time  to  time  as  above  directed." 

The  old  rule  of  chancery  (180),  providing  for  the  investment 

of  funds  paid  into  court,  where  no  direction  as  to  it  is  contained 


JUDGMENT   FOR  AND    SALE   OF   REAL   ESTATE.  649 


Art.  7.     Payment  of  Moneys  Arising  from  Sale  into  Court  and  how  Paid  Out. 

in  the  decree,  is  still  in  force,  modified  only  by  Rule  82  of  1871 
and  1874,  and  Rule  "j-^  of  1877.  Chcsterman  v.  Eyland,  81  N.  Y. 
398.  Rule  68  of  1896,  prescribing  the  place  of  deposit  of  funds 
while  on  deposit,  is  as  follows : 

Rule  68.  Payment  of  money  into  court — designation  of  trust  companies,  etc. 

When  the  court  shall  make  special  directions  for  the  payment  or  investment 
of  money  pursuant  to  sections  744,  745  and  747  of  the  Code,  it  must  require  such 
money  to  be  paid  to  or  invested  by  such  trust  company  as  has  heretofore  been 
designated  by  the  Supreme  Court,  or  as  shall  hereafter  be  designated  by  the 
appellate  division  for  that  purpose. 

Any  trust  company  organized  under  the  laws  of  this  State  may  apply  to  the 
Appellate  Division  of  the  Supreme  Court,  in  the  department  in  which  its  principal 
office  is  situated,  to  be  designated  as  a  deposit  bank  for  such  moneys.  Upon 
such  applications  the  court  shall  direct  a  reference  to  ascertain  the  condition  of 
the  trust  company  making  such  application;  and  the  referee  so  appointed  shall 
examine  the  securities  of  the  company  and  shall  report  to  the  court  its  financial 
condition  and  the  general  nature  of  the  business  transacted  by  it,  specifying  in 
such  report  the  amount  of  all  obligations  or  liabilities  of  the  company,  the 
amount  of  its  capital  stock  outstanding,  the  general  nature  of  its  investment 
and  the  amount  of  its  surplus.  If  it  shall  appear  from  such  report  to  the  satis- 
faction of  the  court  that  moneys  deposited  in  such  company  would  be  safe,  and 
the  company  should  be  designated  as  such  depository,  the  court  may,  in  its  dis- 
cretion, designate  such  company  as  a  deposit  bank  for  such  moneys.  The  ex- 
penses of  such  reference  shall  be  paid  by  the  corporation  making  the  applica- 
tion, and  before  ordering  the  reference,  the  court  may  require  a  sufficient  sum 
to  pay  such  expenses  to  be  deposited  in  court. 

Whenever  by  order  or  judgment,  moneys  are  to  be  brought  into  court,  it  shall 
be  the  duty  of  the  attorney  on  whose  motion  the  same  are  to  be  so  brought  into 
court,  to  file  with  the  county  treasurer  or  with  the  bank  or  company  to  whom 
the  same  are  to  be  paid  according  to  the  said  order  or  judgment,  or  according  to 
the  practice  of  the  court,  a  certified  copy  of  said  order  or  judgment.  The  court 
may,  however,  direct  that  only  a  specified  part  of  the  same  need  be  filed,  which 
part  shall  be  sufficient  to  show  to  whom  the  moneys  so  brought  into  court 
belong. 

In  all  cases  provided  for  by  this  rule,  arising  in  the  city  and  county  of  New 
York,  the  chamberlain  of  said  city  shall  he  the  officer  indicated  l)y  the  words 
"  County  Treasurer." 

Rule  69.  Order  for  payment  out  of  court;  what  to  specify,  etc. 

Orders  upon  the  banks  or  other  companies  for  the  payment  of  moneys  out  of 
court  shall  be  made  to  the  (^rder  of  the  person  entitled  thereto,  or  of  his  attorney 
duly  authorized,  and  shall  specify  in  what  particular  suit  or  on  what  account  the 
money  is  to  be  paid  out,  and  the  time  when  the  order  authorizing  such  payment 
was  made,  No  order  in  any  pending  action,  for  the  payment  of  money  out  of 
court,  shall  be  made,  except  on  regular  notice  or  order  to  show  cause,  duly 
served  on  the  attorneys  of  all  the  parties  who  have  appeared  therein  or  filed  no- 
tice of  claim  thereto.     When  moneys  are  deposited  by  the  order  of  the  court  in 


650  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 

Art.  S.     Passing  Title  and  Writ  of  Assistance. 

any  trust  company,  the  entry  of  such  deposit  in  the  books  of  the  company  shall 
contain  a  short  reference  to  the  title  of  the  cause  or  matter  in  which  such  deposit 
is  directed  to  be  made,  and  specifying  also  the  time  from  which  the  interest  or 
accumulation  on  such  deposit  is  to  commence,  where  it  does  not  commence  from 
the  date  of  such  deposit.  The  secretary  of  the  company  shall  transmit  to  the 
Appellate  Division  of  the  Supreme  Court  in  the  department  in  which  the  trust 
company  is  located  in  each  place  a  statement  of  the  accounts  in  each  department, 
showing  the  amount,  on  the  first  day  of  January,  including  the  interest  or  ac- 
cumulation on  the  sum  deposited  to  the  credit  of  each  cause  or  matter. 

In  every  draft  upon  the  trust  company  by  the  county  treasurer  or  chamber- 
lain, for  moneys  deposited  with  the  said  company,  or  for  the  interest  or  accumu- 
lation on  such  moneys,  the  title  of  the  cause  or  matter  on  account  of  which  the 
draft  is  made,  and  the  date  of  the  order  authorizing  such  draft  shall  be  stated, 
and  the  draft  shall  be  made  payable  to  the  order  of  the  person  or  persons  enti- 
tled to  the  money,  or  of  his  or  their  attorney,  who  is  named  in  the  order  of  the 
court  authorizing  such  draft.  Any  attorney  or  other  person  procuring  an  order 
for  the  payment  of  money  out  of  court  shall  obtain  two  certified  copies  of  the 
order,  both  to  be  countersigned  by  the  judge  granting  the  same  ;  one  copy  shall 
be  filed  with  the  county  treasurer  and  the  other  shall  accompany  the  draft  drawn 
upon  the  depository  and  be  filed  with  it,  and  the  several  banks  and  other  deposi- 
tories having  trust  funds  of  the  court  on  deposit,  are  forbidden  to  pay  out  any 
of  such  funds  without  the  production  and  filing  of  such  certified  and  counter- 
signed copy  order.  This  provision  is  not  intended  to  dispense  with  any  of  the 
requirements  of  this  rule,  as  to  the  form  of  the  draft,  nor  to  apply  to  a  case 
where  periodical  payments  are  directed  to  be  made,  as  provided  for  by  the  last 
sentence  of  said  rule,  after  the  first  payment  from  such  fund  shall  have  been 
made  under  an  order  of  the  court,  in  the  manner  herein  specified.  Where  peri- 
odical payments  are  directed  to  be  made  out  of  a  fund  deposited  with  such  com- 
pany, the  delivery  to  the  secretary  of  the  company  of  one  copy  of  the  order 
authorizing  the  several  payments  shall  be  sufficient  to  authorize  the  payment  of 
subsequent  drafts  in  pursuance  of  such  order. 


ARTICLE    VIII. 
Passing  Title  and  Writ  of  Assistance.     §  1675. 

§  1675.  When  and  how  court  may  compel  delivery  of  possession  of  real 
property  to  purchaser. 

Where  a  judgment  in  an  action  specified  in  this  title,  allots  to  any  person  a 
distinct  parcel  of  real  property,  or  contains  a  direction  for  the  sale  of  real  prop- 
erty, or  confirms  such  an  allotment  or  sale,  it  may  also,  except  in  a  case  where 
it  is  expressly  prescribed  in  this  act  that  the  judgment  may  be  enforced  by  exe- 
cution, direct  the  delivery  of  the  possession  of  the  property  to  the  person  entitled 
thereto.  If  a  party,  or  his  representative  or  successor,  who  is  bound  by  the  judg- 
ment, withholds  possession  from  the  person  thus  declared  to  be  entitled  thereto, 
the  court,  besides  punishing  the  disobedience  as  a  contempt,  may.  in  its  discre- 
tion, by  order,  require  the  sheriff  to  put  that  person  into  possession.  Such  an 
order  must  be  executed,  as  if  it  was  an  execution  for  the  delivery  of  the  posses- 
sion of  the  property. 


JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE.  6^1 


D 


Art.  S.     Passing  Title  and  Writ  of  Assistance. 


The  provisions  of  Rule  6i  require  that  in  foreclosure  the  judg- 
ment shall  direct  that  the  purchaser  be  let  into  posse.s.sion  of  the 
premises  on  production  of  the  deed.  It  is  in  that  class  of  cases 
that  the  writ  of  assistance,  authorized  by  this  .section,  is  most  fre- 
quently used,  although,  as  it  now  stands,  embracing  partition  and 
other  real  actions.  In  Kershaw  v.  Johnson,  4  Johns.  Ch.  609, 
the  chancellor  laid  down  the  rule  that  the  Court  of  Chancery 
would  enforce  its  decree  by  process  for  actual  pos.session  of 
mortgaged  premises,  whenever  such  possession  ought  to  be  de- 
livered. The  rule  was  adopted  in  Ludlow  v.  Lansing,  Hopk. 
231,  and  in  Valentine  v.  Teller,  Hopk.  422,  it  was  held  that  pos- 
.session should  be  given  by  the  most  .simple  and  efficacious  means 
which  was  determined  to  be  a  writ  of  assistance.  Where  mort- 
gaged premises  are  sold  under  a  decree  of  foreclosure,  the  pur- 
chaser is  entitled  to  the  assistance  of  the  court  in  obtaining  pos- 
session as  against  the  parties  to  the  suit,  or  those  who  have  come 
into  possession  under  them  subsequent  to  the  filing  of  the  lis 
pendens.  But  the  court  has  no  right  by  a  summary  juri.sdiction  to 
determine  the  rights  of  third  parties  claiming  title  of  the  premi- 
ses, who  have  recovered  the  pos.se.ssion  by  legal  and  adverse  pro- 
ceedings against  a  party  to  the  suit  under  a  claim  of  right  which 
accrued  previous  to  the  filing  of  the  bill  of  foreclosure.  Freling- 
hnysen  v.  Colden,  4  Paige,  204.  After  a  judgment  of  foreclosure 
directing  that  the  purchaser  be  let  into  possession  of  the  premises, 
the  purchaser,  on  proof  that  he  has  exhibited  the  sheriff's  deed 
and  the  order  confirming  the  sale  to  the  party  in  possession 
of  the  premises,  is  entitled,  ex  parte,  to  an  order  for  a  writ  of 
assistance;  no  notice  of  the  application  therefor  is  necessary. 
A  grantee  of  the  purchaser  is  entitled  to  the  same  remedy  on  the 
further  proof  that  the  deed  from  the  purchaser  to  him  has  also 
been  exhibited  to  the  party  in  possession.  An  equitable  claim 
by  judgment  creditors  against  the  tenant  in  possession,  and 
affecting  the  premises,  cannot  be  heard  upon  a  motion  for  a  writ 
of  assistance  or  motion  to  vacate  the  writ.  .V.  )''.  Life  Ins.  Co.  v. 
Rand,  8  How.  35,  affirmed,  8  How.  352;  X.  Y.  Life  Ins.  Co.  v. 
Cutler,  9  How.  407.  The  same  views  are  expressed  as  to  the 
practice  on  granting  the  writ  in  Lynde  v.  O'Donnell,  21  How.  34. 
But  the  writ  will  issue  only  again.st  parties  to  the  suit,  or  those 
who  came  into  possession  under  them.  Boynton  v.  Jack'way,  10 
Paige,  307.     Nor  will  the  writ  be  granted  to  remove  persons  who 


652  JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 

Art.  8.     Passing  Title  and  Writ  of  Assistance. 

go  into  possession  after  the  purchaser  has  received  his  deed  and 
conveyed  the  premises  to  another,  where  the  entry  was  more 
than  a  year  after  the  sale.  Betts  v.  Birdsall,  1 1  Abb.  222.  There 
is  no  settled  practice  authorizing  a  writ  to  the  grantee  of  the  pur- 
chaser, and  it  should  be  denied  where  there  is  a  strong  probability 
of  injustice  being  done  to  the  person  in  possession.  Van  Hook 
V.  TJirockinorton,  8  Paige,  33.  A  defendant  in  possession  must 
be  presumed  cognizant  of  the  judgment,  and  all  he  can  require 
beyond  is  proof  of  the  title  of  the  party  claiming.  N.  Y.  Life 
Ins.  Co.  V.  Rand,  8  How.  35,  supra.  The  power  of  the  court  to 
give  possession  extends  only  to  those  who  are  parties  to  the  suit> 
or  who  have  come  into  possession  under  or  with  the  assent  of  such 
parties,  and  not  to  one  who  was  named  as  defendant,  and  as  to 
whom  the  case  was  dismissed.  Where  a  writ  of  assistance  has 
been  improperly  granted,  the  court  should  set  it  aside  on  motion. 
Mciggs  V.  Willis,  8  Civ.  Pro.  R.  125. 

The  power  of  the  court  to  issue  the  writ  is  superseded  by  an 
agreement  between  the  purchaser  and  the  party  in  possession  to 
reconvey  on  terms,  and  a  failure  of  the  party  in  possession  to 
comply  with  the  terms  will  not  give  the  right  to  the  remedy. 
Toll  V.  Hiller,  1 1  Paige,  228.  After  sale  a  tenant  in  possession 
who  was  made  a  party  to  the  foreclosure,  is  bound  to  attorn  to 
the  purchaser,  notwithstanding  that  he  holds  under  an  unexpired 
lease,  executed  by  the  mortgagors  prior  to  the  mortgage,  and,  if 
he  refuses,  he  may  be  removed  by  a  writ  of  assistance.  Lovett  v. 
German  Reformed  Church,  9  How.  220.  A  purchaser  in  fore- 
closure, upon  the  production  of  his  deed,  is  presumptively  en- 
titled to  possession,  and  upon  demand  thereof,  and  refusal,  the 
writ  of  assistance  is  the  ordinary  and  usual  process  of  the  court ; 
and  whether  it  should  be  granted  or  withheld  is  in  the  discretion 
of  the  court.  Wilbor  v.  Donalds,  59  N.  Y.  657.  The  practice  in 
ordinary  cases  where,  by  the  judgment  of  the  court,  the  posses- 
sion of  land  is  awarded  to  a  party,  or  where  it  is  directed  that  a 
purchaser  be  let  into  possession,  is  to  order  a  writ  of  possession 
or  a  writ  of  assistance,  as  the  case  may  be.  The  former  is  the 
appropriate  remedy  in  legal,  the  latter  in  equitable  actions ;  they 
are  in  substance  the  same.  Matter  of  N.  V.  C.  &  H.  R.  R.  R. 
Co.  60  N.  Y.  116.  It  is  said  in  Peck  v.  Knickerbocker  Ice  Co.  18 
Hun,  183,  that  until  the  confirmation  of  the  sale  by  the  court  it 
is  not  absolute ;  it  may  be  set  aside  and  a  resale  ordered.     The 


JUDGMENT    FOR   AND    SALE    OF    REAL    ESTATE.  653 

Art.  8.     Passing  Title  and  Writ  of  Assistance. 


purchaser  has  acquired  only  a  contingent  right.     Until  such  right 
becomes  absolute  by  confirmation,  it  would  seem  to  be  the  better 
practice  that  the  purchaser  ought  not  to  have  possession.     This 
case  is  followed  in  Farmers  Loan  &  Trust  Co.  v.  Bankers,  etc.  Co. 
1 1  Civ.  Pro.  R.  307,  holding  that  where,  upon  motion  to  compel 
the   delivery  of  property  to   a  purchaser  at    foreclosure   sale,   it 
appeared  the  sale  had  not  been  confirmed,  the  motion  should  be 
denied ;  that  it  was  the  safest  as  well  as  the  ordinary  practice  to 
have  such  questions  settled  by  the  referee's  report  of  sale  and  a 
motion  to  confirm  the  same.      Clason  v.  Corley,  5  Sandf.  Ch.  447, 
is  cited  by  counsel  as  in   point.     The  purchaser  under  a  sale  in 
foreclosure  cannot  be  kept  out  of  possession  of  the  premises  on  a 
claim   of  want   of  title  thereto  in  the  mortgagor,  and  a  writ  of 
assistance  would  be  granted,  if  necessary,  to  put  him  in  possession. 
The   court  may,  in  the  exercise  of  its  discretion,  grant  the  writ 
without  notice,  and  such  is  the  more  usual  way.      Bowery  Savings 
Bankv.  Foster,  11  Week.  Dig.  493.      Where,  after  judgment  and 
sale  in  foreclosure,  a  writ  of  assistance,  regular  and  fair  upon  its 
face,  is  issued  against  one  of  the  defendants  thereon,  the  officer 
executing  the  same,  and   those  acting  under  him,  are  protected 
thereby,  even   though   the  writ  were   irregularly  issued,  and  the 
defendant  would  be  entitled  to  have  the  same  set  aside  on  motion. 
Arrex  v.  Broadhead,  19  Hun,   269.     Where  a  writ  of  assistance 
is  issued,  upon  notice,  in   favor  of  a  purchaser  at  foreclosure  sale 
against  a  tenant  in  possession  of  the  mortgaged  premises,  and  is 
executed  by  putting  the  tenant   in    possession,   it   is  conclusive 
upon  the  tenant  upon  the  question  of  the  right  of  possession.      If 
the  tenant  had  any  defence,  it  should  have  been  presented  upon 
the  hearing  of  the  motion  for  the  writ.      The  question  whether 
the  writ  was  properly  awarded  cannot  be  reviewed  in  a  collateral 
action  in  another  court.     Razviszer  v.  Brennan,  51  How.  297. 

A  writ  of  possession,  upon  a  judgment  in  ejectment,  can  law- 
fully be  executed  after  the  return  day;  the  command  to  return 
within  sixty  days  is  directory  merely.  See,  also,  as  to  what 
amounts  to  a  due  execution  of  the  writ,  Whitbeck  v.  Van  Rensse- 
laer, 64  N.  Y.  27.  In  case  of  a  mortgagee  out  of  possession,  who 
is  not  chargeable  with  notice  of  proceedings  to  dispossess  his 
mortcrasror,  stronger  grounds  exist  than  for  the  purpose  of  cut- 
ting  off  his  mortgage;  the  writ  of  possession  should  be  executed 
by  a  more  open,  notorious  and  visible  change  of  posses.sion  than 


654  JUDGMENT    FOR   AND    SALE    OF    REAL   ESTATE. 

Art.  8.     Passing  Title  and  Writ  of  Assistance. 

in  case  of  a  tenant  or  defendant  in  the  judgment.  The  ordinary 
rule  is  that  the  plaintiff  must  be  put  into  full  and  complete  pos- 
session, and  it  must  be  full  and  actual;  the  mere  reaching  into  a 
house,  without  entry,  and  taking  a  chair  and  setting  it  outside, 
is  not  such  an  execution  of  a  writ  of  possession  as  is  required  to 
bar  such  mortgagee  out  of  possession.  A  sheriff's  return  to  a  writ 
of  possession  is  not  conclusive  as  to  its  execution.  Distinguishing 
Whit  beck  V.  Van  Rensselaer,  64  N.  Y.  27,  supra,  Newell  v.  Whig- 
ham,  102  N.  Y.  20;  S.  C.  I  St.  Rep.  666.  But  the  purchaser  having 
been  put  in  possession,  the  court  does  not  undertake  to  always 
guard  his  possession  and  that  of  his  grantee.  Betts  v.  Birdsall, 
1 1  Abb.  222.  The  general  rule  is,  that  where  a  judgment,  order 
or  decree  has  been  reversed  or  vacated,  restitution  will  be  made 
of  all  property  and  rights  which  have  been  lost  by  reason  of  it ; 
the  case  of  vacating  a  writ  of  assistance  forms  no  exception  to 
this  rule.      Chamberlain  v.  Choles,  35  N.  Y.  477. 

The  writ  of  assistance  has  not  been  abolished  by  the  Code  nor 
has  a  substitute  been  provided  for  it,  and  except  where  the  judg- 
ment can  be  enforced  by  execution,  the  writ  is  still  an  appropri- 
ate remedy  in  the  enforcement  of  mechanic's  lien.  Connor  v. 
ScJiaeffel,  19  Civ.  Pro.  R.  378,  33  St.  Rep.  143.  A  court  of 
equity  has  authority  to  decree  the  possession  of  land  where  a  con- 
troversy regarding  the  title  thereto  has  been  properly  brought 
within  its  jurisdiction,  and  the  law  will  enforce  its  decree  for  the 
delivery  of  actual  possession.  Kershazv  v.  Thompson,  4  Johns. 
609;  Valentine  v.  Teller,  Hopk.  Ch.  422;  Bolles  v.  Duff,  43 
N.  Y.  469. 

A  purchaser  is  entitled  to  possession  on  compliance  with  the 
terms  of  sale  and  will  not  be  driven  to  an  action  at  law  to  obtain 
possession.  Ludlow  v.  Lansing,  Hopk.  Ch.  231  ;  Valentine  v. 
Teller,  Hopk.  Ch.  422;  Kershaw  v.  Thompson,  4  Johns.  Ch.  609; 
Frelinghuysen  v.  Colden,  4  Paige,  204.  But  not  where  the  party 
in  possession  was  not  a  party  to  the  action  and  did  not  acquire 
his  possession  from  the  party  who  was  bound  by  the  decree. 
Boynton  v.  Jackivay,  10  Paige,  307;  Meiggs  v.  Willis,  8  Civ.  Pro. 
R.  125. 

Except  in  cases  where  the  decree  does  not  contain  an  order  for 
the  surrender  of  the  premises  to  the  purchaser,  a  writ  of  assist- 
ance cannot  be  granted  until  such  order  has  been  obtained  upon 
notice  to  the  party  occupying  the  property  after  a  demand  for  the 


JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE.  6$$ 


Art.  8.     Passing  Title  and  Writ  of  Assistance. 


possession.  Ljnde  v.  McDonald,  12  Abb.  Pr.  286;  N.  V.  Life 
Ins.  &  Trust  Co.  v.  Rand,  8  How.  35,  352.  The  court  will  award 
a  writ  of  assistance  as  against  all  persons  who  are  parties  to  the 
suit  or  who  come  into  possession  under  it  while  it  was  pending, 
and  will  not  remove  persons  who  went  into  possession  after  the 
purchaser  had  received  his  deed  and  conveyed  the  premises  to 
another.  Bell  v.  Birdsall,  19  How.  491;  Belts  w.  Birdsall,  11 
Abb.  Pr.  222. 

A  writ  of  assistance  is  the  proper  process  to  place  in  possession 
a  purchaser  of  mortgaged  premises  under  its  decree  of  sale. 
Kershazv  v.  Thompson,  4  Johns.  Ch.  609;  Terrell  v.  Allison.  88 
U.  S.  291.  This  will  be  granted  on  proof  that  he  has  exhibited 
his  deed  to  the  person  in  possession  and  demanded  possession. 
Kershaw  v.  Thompson,  4  Johns.  Ch.  609;  Battershall  v.  Davis, 
23  How.  83;  Van  Hook  v.  Throckmorton,  8  Paige,  33;  Frcling- 
hiiysen  v.  Colden,  4  Paige,  204.  Notice  of  application  for  the  writ 
is  unnecessary.  Lynde  v.  O' Donnell,  21  How.  39;  N.  Y.  Life 
Ins.  &■  Trust  Co.  v.  Rand,  8  How.  35  ;  Valentine  v.  Teller,  Hopk. 
Ch.  422. 

The  purchaser  must  be  put  into  full  and  complete  possession 
under  a  writ  of  possession,  but  it  will  not  be  regarded  as  properly 
and  sufficiently  executed  until  the  sheriff  and  his  officers  have 
left  the  purchaser  in  settled  and  quiet  possession.  Newell  v. 
Whigham,  102  N.  Y.  20,  i  St.  Rep.  666,  reversing  29  Hun,  204. 
Where  the  writ  has  been  improperly  granted,  the  person  dispos- 
sessed will  be  restored  to  possession.  Chamberlain  v.  Choles,  35 
N.  Y.  477;  Mciggs  v.  Willis,  8  Civ.  Pro.  R.  125. 

After  entry  of  a  decree  of  sale  and  death  of  the  referee,  the 
court  may  make  an  order  providing  for  carrying  same  out  after 
the  death  of  the  defendant  mortgagor  and  without  reviving  the 
action.  Wing  v.  Dc  La  Rionda,  125  N.  Y.  678,  34  Supp.  267. 
The  purchaser  in  a  foreclosure  sale  is  entitled  to  all  the  rents 
from  the  day  of  the  delivery  of  the  deed.  Cowen  v.  Arnold,  58 
Hun.  437,  35  St.  Rep.  134,  12  Supp.  601.  A  decree  in  fore- 
closure is  not  outlawed  after  twenty  years;  it  is  for  the  court  to 
determine  whether  it  shall  be  enforced.  Wing  v.  De  La  Rionda, 
34  St.  Rep.  267. 


656 


JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE. 


Art.  S.     Passing  Title  and  Writ  of  Assistance. 


Affidavit  for  Writ  of  Assistance. 

SUPREME  COURT  — County  ok  Ulster. 


THE  ULSTER  COUNTY  SAVINGS  INSTI- 
TUTION 

agst. 

JOSEPH  SCHOONMAKER  and  Others. 


-Title  same  as  in  summons. 


Ulster  County,  ss.: 

James  H.  Vandemark,  of  the  town  of  Rosendale,  in  said  county, 
being  duly  sworn,  says:  That  on  the  4th  day  of  March,  1876,  he 
attended  a  sale  of  the  premises  described  in  the  complaint  in  the 
above-entitled  action,  and  which  premises  are  also  described  in  the 
judgment  herein  on  the  14th  day  of  January,  1876,  at  Ulster  Special 
Term,  which  judgment-roll,  or  a  copy  thereof,  is  referred  to  as  part 
of  these  moving  papers;  that  such  premises  were  sold  by  Alton  B. 
Parker,  Esq.,  as  referee,  and  that  they  were  struck  off  and  sold  to 
this  deponent,  he  being  the  highest  bidder  therefor,  for  the  sum  of 
$3,700;  and  that  on  the  14th  day  of  March,  1876,  he,  this  de- 
ponent, received,  according  to  the  terms  of  sale,  having  complied 
therewith,  a  deed  of  the  premises,  which  is  also  made  part  of  the 
moving  papers  herein;  that  on  the  said  14th  day  of  March,  1876, 
this  deponent  went  upon  the  premises  so  purchased  by  him,  and 
found  Maria  Arrex,  a  party  to  this  action,  as  appears  by  the  papers 
herein,  in  possession  of  a  part  of  the  dwelling-house  situate  on  said 
premises;  that  deponent  exhibited  to  said  Maria  Arrex  his  said 
deed,  and  demanded  possession  of  the  premises;  that  said  Maria 
Arrex  refused  to  give  up  possession  of  the  premises,  claiming  that 
she  had  possession  under  her  deed;  that  deponent  demanded  such 
possession,  and  stated  to  said  Maria  Arrex  that  he  demanded  pos- 
session under  his  deed,  which  he  there  produced,  and  said  Maria 
Arrex  refused  to  deliver  such  possession;  that  said  deed  recites  the 
fact  that  said  Maria  Arrex  was  a  party  to  this  action,  and  sets  forth 
proceedings  therein. 

Wherefore  deponent  asks  the  aid  of  this  court  in  the  matter,  and 
a  writ  of  assistance  against  such  Maria  Arrex,  or  such  proper 
and  appropriate  remedy  as  shall  be  just  and  according  to  the  law  and 
practice  in  such  case. 

JAMES    H.    VANDEMARK. 
Subscribed  and  sworn  before  ) 
me,  March  15,  1876.  f 

Wm.  L.  Conklin, 

Notary  Public. 


JUDGMENT   FOR   AND    SALE   OF   REAL   ESTATE.  657 

Art.  8.     Passing  Title  and  Writ  of  Assistance. 

Order  for  Writ. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  Chambers,  in  the 
village  of  Catskill,  in  and  for  the  State  of  New  York,  on  the 
20th  day  of  March,  1876. 

Present  —  Hon.  A.  M.  Osborn,  Justice. 

SUPREME  COURT  — County  of  Ulster. 


THE  ULSTER  COUNTY  SAVINGS  INSTI- 
TUTION 

agst. 

JOSEPH   SCHOONMAKER  and  Others. 


►  Title  same  as  in  summons. 


On  reading  and  filing  the  judgment  in  foreclosure  in  this  action, 
granted  at  Ulster  Special  Term  on  the  14th  day  of  February,  1876; 
the  referee's  deed  to  James  H.  Vandemark,  dated  March  4,  1876; 
the  report  of  sale  of  A.  B.  Parker,  the  referee,  dated  and  filed  in 
Ulster  county  clerk's  office  March  20,  1876,  and  the  affidavit  of 
James  H.  Vandemark,  verified  March  15,  1876,  by  which  it  appears 
that  a  judgment  of  foreclosure  and  sale  of  the  premises  described  in 
the  complaint  in  this  action  and  in  the  said  judgment  was  duly 
granted,  and  the  premises  therein  described  directed  to  be  sold 
under  the  direction  of  Alton  B.  Parker,  Esq.,  as  referee;  that  after 
due  notice  of  the  time  and  place  of  such  sale,  the  said  premises 
were  sold  to  James  H.  Vandemark,  and  a  deed  thereof  executed 
and  delivered  to  said  Vandemark  by  said  referee;  that  the  said  pur- 
chaser, after  receiving  such  deed,  demanded  possession  of  said 
premises,  and  produced  his  said  deed  to  one  Maria  Arrex,  a  party 
defendant  to  this  action,  who  was  in  possession  of  the  premises; 
that  said  Maria  Arrex  refused  to  deliver  or  give  up  possession  of 
the  premises  to  the  said  purchaser:  Now,  on  motion  of  C.  A.  &  E. 
Fowler,  attorneys  for  James  H.  Vandemark,  the  purchaser  of  said 
premises  as  aforesaid,  it  is 

Ordered,  that  a  writ  of  assistance  issue  out  of  and  under  the  seal 
of  this  court  to  the  sheriff  of  the  county  of  Ulster,  commanding  and 
directing  him  to  forthwith  enter  upon  said  premises,  described  fully 
and  at  large  in  the  complaint,  judgment  and  report  of  sale  in  this 
cause  on  file  in  Ulster  county  clerk's  office;  and  that  he,  the  said 
sheriff  of  Ulster  county,  eject  and  remove  therefrom  the  said  Maria 
Arrex,  and  any  of  the  parties  defendant  in  this  action  who  may  be 
in  possession  of  said  premises,  or  any  part  thereof,  and  any  person 
who  since  the  commencement  of  this  action  has  come  into  the  pos- 
session of  said  premises,  or  any  part  thereof,  under  him  or  them, 
and  detains  the  same,  or  any  part  thereof,  against  the  said  James  H. 
Vandemark,  and  that  he  put  the  said  James  H.  Vandermark,  or  his 
assigns,  in  the  full,  peaceable  and  quiet  possession  of  the  said 
premises,  without  delay,  and  that  he  maintain  him,  the  said  James 
H.  Vandemark,  in  such  possession  from  time  to  time,  or  cause  him 
to  be  kept,  maintained  and  defended  in  such  possession  from  time 
to  time,  according  to  the  tenor  and  intent  of  .'^aid  judgment. 

[Special  Actions  —  42.] 


658  JUDGMENT   FOR   AND   SALE   OF   REAL   ESTATE. 

Art.  8.     Passing  Title  and  Writ  of  Assistance. 

Writ  of  Assistance. 

The  People  of  the  State  of  New  York,  to  the  sheriff  of  the  county 
of  Ulster,  greeting : 

Whereas,  on  the  14th  day  of  January,  1876,  by  a  judgment 
recovered  in  our  Supreme  Court  of  the  State  of  New  York,  in  an 
action  then  depending  in  said  court,  wherein  the  Ulster  County 
Savings  Institution  is  plaintiff  and  Joseph  Schoonmaker  and  others 
(title  same  as  in  summons)  are  defendants,  it  was,  among  other 
things,  adjudged  that  all  and  singular  the  mortgaged  premises  men- 
tioned in  the  plaintiff's  complaint  in  said  action  be  sold  at  public 
auction  by  or  under  the  direction  of  Alton  B.  Parker,  referee 
thereby  appointed  for  that  purpose;  and  also  that  the  purchaser  or 
purchasers  at  such  sale  be  let  into  possession  of  the  premises  on 
production  of  the  referee's  deed. 

And,  whereas,  the  said  Alton  B.  Parker,  referee,  has  duly  filed  his 
report  of  said  sale,  from  which  report  it  appears  that  the  premises 
hereinafter  described  were  sold  to  James  H.  Vandemark,  and  that 
the  referee's  deed  has  been  executed,  acknowledged  and  delivered 
to  the  said  purchaser,  James  H.  Vandemark,  and  the  said  James  H. 
Vandemark  has  not  been  let  into  nor  taken  possession  of  said 
premises  or  any  part  thereof,  according  to  the  tenor  of  the  judgment 
of  the  said  court,  notwithstanding  the  said  James  H.  Vandemark 
has  produced  and  shown  to  Maria  Arrex,  a  person  who  is  in  posses- 
sion of  a  part  of  the  premises  so  sold  and  hereinafter  described, 
the  said  deed  of  the  premises,  in  pursuance  of  said  judgment: 

Therefore  we  command  you  that  you  forthwith  enter  upon  said 
premises,  which  are  described  as  follows,  to  wit:  (Here  follows 
description  of  premises  as  in  complaint.) 

And  that  you  eject  and  remove  therefrom  the  said  Maria  Arrex 
and  any  of  the  parties  defendant  in  this  action  who  may  be  in  pos- 
session of  said  premises,  or  any  part  thereof,  and  any  person  who, 
since  the  commencement  of  this  action,  has  come  into  the  posses- 
sion of  said  premises,  or  any  part  thereof,  under  him  or  them,  and 
detains  the  same,  or  any  part  thereof,  against  the  said  James  H. 
Vandemark,  and  that  you  put  the  said  James  H.  Vandemark,  or 
his  assigns,  in  the  full,  peaceable  and  quiet  possession  of  the  said 
premises  without  delay,  and  him,  the  said  James  H.  Vandemark,  in 
such  possession  thereof  from  time  to  time  maintain,  keep  and 
defend,  or  cause  to  be  kept,  maintained  and  defended,  according  to 
the  tenor  and  true  intent  of  said  judgment. 

Witness  Hon.  A.  Melvin  Osborn,  one  of  the  justices  of  our 
[l  s]        Supreme    Court,  at    Catskill,    this    20th   day   of    March, 
1886. 

P.    D.    LE  FEVER, 

C.  A.  &  E.  Fowler,  Clerk. 

Attorneys  for  purchaser. 

The  writ  should  be  indorsed  "granted  by  the  court,"  which 
indorsement  should  be  signed  by  the  justice  granting  the  order. 


JUDGMENT    FOR   AND   SALE   OF   REAL   ESTATE.  659 

Art.  9.     Effect  of  Judicial  Sale. 

ARTICLE    IX. 

Effect  of  Judicial  Sale. 

A  judgment  directing  a  sale  conclusively  determines,  as  be- 
tween the  parties,  not  only  the  necessity  and  propriety  of  the 
sale,  but  the  place  and  manner  of  sale.  Winter  v.  Eckert,  93 
N.  Y.  367.  A  purchaser  at  a  foreclosure  sale  is  entitled  to 
receive  a  deed  from  the  referee,  irrespective  of  the  rights  of  a 
third  party,  under  an  alleged  contract  by  such  purchaser  to 
recover  upon  certain  terms.  Belter  v.  Lyon,  2  St.  Rep.  505.  A 
bona  fide  purchaser  acquires  no  title  as  against  the  owner  of  the 
property  at  a  sale  under  a  void  process,  and  stands  in  no  better 
position  than  one  purchasing  with  knowledge  of  the  invalidity. 
Place  V.  Whittaker,  98  N.  Y.  i.  As  to  effect  of  sale  in  partition, 
see  that  title,  §  1557,  and  cases  cited;  as  to  effect  of  sale  in  fore- 
closure, see  that  title,  §  1632,  and  cases  cited. 


CHAPTER  XII. 

MISCELLANEOUS  PROVISIONS  RELATING   TO    REAL 

ESTATE    ACTIONS. 

PAGE. 

Article  i.   Survey,  when  ordered.     Sees.  1682,  1683,  1684....   660 

2.  When  infant  may  maintain  action  as  to  real  estate 

in  his  own  name.     Sec.  1686 661 

3.  Joinder  of    actions  and  when  special    proceedings 

not  allowed  as  to  real  estate.     Sees.  1687,  1688..   662 

4.  When  heir  can  maintain  ejectment  after  default  by 

tenant  for  life.     Sec.  1680 663 

Sections   of    the   Code  of    Procedure  and   Where  Found    in 

THIS  Chapter. 

SEC.  ART.    PAGE. 

1680.   Reversioner,  etc.,  may  bring  action  after  tenant's  default 4       663 

1682.  When  order  for  survey  may  be  made I       660 

1683.  Contents  and  service  of  order  I       660 

1684.  Authority  of  party  under  order I       660 

1686.  Infant  may  maintain,  etc.,  real  action  in  his  own  name 2       661 

1687.  Joinder  of  real  actions  with  others 3       662 

1688.  When  special  proceedings  to  recover  real  property  not  allowed.       3       662 

ARTICLE    I. 

Survey,  When  Ordered.     §§  1682,  1683,  1684. 

§  1682.  When  order  for  survey  may  be  made. 

If  the  court,  in  which  an  action  relating  to  real  property  is  pending,  is  satisfied 
that  a  survey  of  any  of  the  property,  in  the  possession  of  either  party,  or  of  a 
boundary  line  between  the  parties,  or  between  the  property  of  either  of  them> 
and  of  another  person,  is  necessary  or  expedient,  to  enable  either  party  to  pre- 
pare a  pleading,  or  prepare  for  trial,  or  for  any  other  proceeding  in  the  action, 
it  may,  upon  the  application  of  either  party,  upon  notice  to  the  party  in  posses- 
sion, make  an  order,  granting  to  the  applicant  leave  to  enter  upon  that  party's 
property,  to  make  such  a  survey. 

§  1683.  Contents  and  service  of  order. 

An  order,  made  as  prescribed  in  the  last  section,  must  specify,  by  a  description 
as  definite  as  may  be,  the  property  or  boundary  line  to  be  surveyed,  and  the 
real  property  of  the  adverse  party,  upon  which  it  is  necessary  to  enter  for  that 
purpose.  A  copy  thereof  must  be  served  on  the  owner  or  occupant  of  that 
property,  before  entry  thereupon. 

§  1684.  Authority  of  party  under  order. 

After  serving  a  copy  of  the  order,  as  prescribed  in  the  last  section,  the  party 
obtaining  it,  his  necessary   surveyors,  servants,  and  agents,  may  enter,  for  the 

[660] 


MISCELLANEOUS  PROVISIONS  RELATING  TO  REAL  ESTATE.    66l 

Art.  2.     When  Infant  may  Maintain  Action  as  to  Real  Estate  in  His  Own  Name. 

purpose  of  making  the  survey,  upon  the  real  property  described  in  the  order, 
and  may  there  make  the  survey;  but  each  person  so  entering  is  responsible  for 
any  unnecessary  injury  done  by  him;  and  the  party  procuring  the  order  is  re- 
sponsible for  such  an  injury,  done  by  any  person  so  entering. 

The  note  to  hear  v.  Burstcin,  30  Abb.  N.  C.  71,  cites  statutes 
of  the  State  with  regard  to  surveyor's  oath  to  standards  and  a 
number  of  cases  in  other  States  treating  upon  surveys  as  evidence. 
In  the  case  cited  the  parties  stipulated  before  trial  to  allow  the 
court  to  appoint  a  competent  disinterested  surveyor  to  examine 
the  premises,  and  thai  his  report  should  be  conclusive  as  to  the 
disputed  boundary,  and  it  was  so  held. 

The  language  of  §  1682  is  applicable  to  all  actions  relating  to 
real  property,  and  its  provisions  being  unambiguous,  are  not 
limited  by  the  title  of  article  9  of  title  i  of  chapter  14  of  part  2  of 
the  Code.  An  action  brought  to  recover  damages  for  an  alleged 
unlawful  entry  on  plaintiff's  premises  by  means  of  a  tunnel  sunk 
into  the  ground  on  an  adjoining  lot,  and  for  a  severing  and 
removinfr  valuable  material  from  the  soil  thereof,  beneath  the 
surface  of  plaintiff's  land,  is  under  the  provisions  of  this  section. 
The  court  may  grant  the  applicant  leave  to  survey  any  of  the 
property  in  possession  of  the  opposite  party,  and  in  a  proper 
case,  direct  a  survey  of  the  defendant's  premises  through  a  tunnel 
under  the  surface  as  well  as  upon  the  surface.  Hozues  Cave  Lime 
&  Cement  Co.  v.  Howes  Cave  Ass  11,  88  Hun,  556. 

ARTICLE    II. 

When  Infant  May  Maintain  Action  as  to  Real  Estate 

IN  his  OWN  Name.     §  1686. 

g  1686.  Infant  may  maintain,  etc.,  real  action  in  his  own  name. 

Any  action  specified  in  this  title  may  be  maintained  by  or  against  an  infant 
in  his  own  name;  and  article  fourth  of  title  second  of  chapter  fifth  of  this  act 
applies  to  such  an  action,  except  as  otherwise  prescribed  in  sections  1535  and 
1536  of  this  act. 

It  is  said  in  Segelken  v.  Meyer,  94  N.  V.  4/3.  that  the  object 
of  this  section  is  to  abolish  the  rule  in  Scaton  v.  Davis,  i  T.  &  C. 
91,  and  Cagger  v.  Lansing,  64  N.  Y.  417,  and  to  assimilate  real 
actions  to  the  practice  establi-shed  by  the  Code. 

Section  1686  should  be  read  in  connection  with  !i  1638,  but  as 
so  read  does  not  give  a  right  of  action,  but  only  provides  that  an 
action  may  be  maintained  by  or  against  an  infant  where  the  right 


662     MISCELLANEOUS  PROVISIONS  RELATING  TO  REAL  ESTATE. 

Art.  3.     Joinder  of  Actions  and  when  Special  Proceedings  not  Allowed. 

of  action  is  given  by  other  provisions  of  the  title.  Wciler  v. 
Ncmbach,  114  N.  Y.  36.  See,  however,  the  amendment  of  1891 
to  §  1638. 

An  action  to  compel  the  determination  of  a  claim  to  real  prop- 
erty is  not  maintainable  against  an  infant.  This  section  does  not 
give  a  right  of  action  such  as  to  enable  it  to  be  brought  against 
an  infant.  Weilcr  v.  Nembach,  114  N.  Y.  36,  affirming  13  Civ. 
Pro.  R.  380.  A  judgment  in  an  action  brought  by  a  general 
guardian  where,  from  the  title  of  the  action  and  averments  of  the 
complaint,  it  is  evident  the  action  is  brought  solely  on  behalf  of 
the  infant,  and  where  the  recovery  is  for  his  benefit,  in  the  absence 
of  fraud  or  collusion,  is  binding  upon  the  infant.  Carr  v.  Huff, 
57  Hun,  18;  s.  c.  10  Supp.  361,  32  Rep.  26. 

As  a  general  rule,  actions  brought  by  an  infant  should  be 
brought  in  the  name  of  the  infant  by  a  guardian  ad  litem  and  not 
in  the  name  of  his  general  guardian.  The  objection  that  a  gen- 
eral guardian  of  an  infant  cannot  sue  in  behalf  of  his  ward,  for 
injury  to  his  ward's  estate,  is  one  going  to  his  legal  capacity  and 
not  to  the  existence  of  a  cause  of  action,  and  if  it  appears  on  the 
face  of  the  complaint,  is  waived  if  not  taken  by  demurrer.  Per- 
kins V.  Stimniel,  17  Civ.  Pro.  R.  25  (Ct.  of  App.  2d  Div.),  reversing 
42  Hun,  520.  The  general  guardian  of  an  infant,  to  whom,  as 
such,  mortgage  has  been  assigned,  may  sue  to  foreclose  the  same 
without  joining  the  infant,  notwithstanding  this  section.  Such 
guardian  is  within  the  statute  allowing  the  trustee  of  an  express 
trust  to  sue  without  joining  with  him  the  person  for  whose  benefit 
the  action  is  prosecuted.  A  guardian  buying  in  property  at  such 
a  sale  need  not  apply  to  the  court  for  leave  to  sell.  Bayer  v. 
Phillips,  17  Abb.  N.  C.  425. 

ARTICLE    ni. 

Joinder  of  Actions  and  When  Special  Proceedings  not 
Allowed  as  to  Real  Estate,     §§  1687,  1688. 

§  1687.  Joinder  of  real  actions  with  others. 

Nothing  contained  in  this  title  is  to  be  construed,  as  to  prevent  the  plaintiff 
from  uniting  in  the  same  complaint  two  or  more  causes  of  action,  in  any  case 
specified  in  section  484  of  this  act. 

^  1688.   When  special  proceeding  to  recover  real  property  not  allowed. 

A  special  proceeding  to  recover  real  property  cannot  be  taken,  except  in  a  case 
specially  prescribed  by  law. 


MISCELLANEOUS  PROVISIONS  RELATING  TO  REAL  ESTATE.    663 


Art.  4.     When  Heir  can  Maintain  Ejectment  after  Default  by  Tenant  for  Life. 

ARTICLE    IV. 

When  Heir  Can  Maintain  Ejectment  after  Default  by 

Tenant  for  Life.    §  1680. 

§  1680.  Reversioner,  etc.,  may  bring  action  after  tenant's  default. 

Where  a  tenant  for  life,  or  for  a  term  of  years,  suffers  judgment  to  be  taken 
against  him,  by  consent  or  by  default,  in  an  action  of  ejectment,  or  an  action 
for  dower,  the  heir  or  person  owning  the  reversion  or  remainder,  may,  after  the 
determination  of  the  particular  estate,  maintain  an  action  of  ejectment  to  re- 
cover the  property. 

This  section  would  seem  to  properly  belong  under  ejectment 
and  it  is  inserted  under  Article  IV,  subd.  4,  of  that  title. 


CHAPTER  XIII. 

MECHANIC'S  LIENS.* 
(Chapter  342,  Laws  1885,  as  amended.) 

PAGE. 

Article  i.   Nature  and  extent  of  the  remedy , 664 

2.  By  and  against  whom,  and  in  what  cases  lien  ac- 

quired.    Sec.  1 666 

3.  Notice  of  lien  and  filing.     Sec.  4 678 

4.  Priority    of    liens   and    rights    of    sub-contractors. 

Sees.  5,  20 684 

5.  Payments  in  advance  and  demand  upon  owner  for 

terms  of  contract.      Sees.  2,3 690 

6.  Discharge  of  lien.     Sec.  24 691 

7.  Construction  of  statute  and  repealing  clause.     Sees. 

25,  26 694 

8.  Foreclosure  of  liens.     Sees.  6-19,  21,  22,  23 695 

9.  Liens  against  municipal  property  under  contract. .  723 
10.   Liens   on   railroads,    oil,    gas    or    water    wells    and 

cemetery  structures 734 

ARTICLE    I. 
Nature  and  Extent  of  the  Remedy. 

The  lien  of  a  mechanic  is  a  claim  created  by  law  for  the  pur- 
pose of  securing  a  priority  of  payment  of  the  price  and  value  of 
work  performed  and  materials  furnished  in  erecting  a  building, 
and  as  such  it  attaches  as  well  to  the  buildings  erected  thereon. 
It  is  a  peculiar  and  special  remedy  given  by  statute  founded  and 
circumscribed  by  the  terms  of  its  own  discretion.  American  and 
English  Ency.  of  Law,  vol.  15,  page  5. 

The  mechanic's  lien  is  a  particular  statutory  charge  upon  real 
estate,  given  for  the  security  of  persons  improving  it  by  their 
labor  or  materials.  Kneeland  on  Mechanic's  Liens,  page  8.  It 
is  exclusively  the  creature  of  the  statute.  Grant  v.  Vandercook, 
8  Abb.  (N.  S.)  455,  57  Barb.  165;  Hiixford  v.  Bogardus,  40  How. 
94;  Benton  v.  Wickzvire,  54  N.  Y.  226. 


*The  law  and  practice  on  Mechanic's  Liens  in  New  York  is  given  Snyder's 
Mechanic's  Lien  Law  of  New  York  and  Derby's  Mechanic's  Lien  Law  of  New 
York.  The  subject  is  very  fully  treated  in  Phillips'  Mechanics  Liens  and  Jones 
on  Liens. 

[664] 


mechanic's  lien.  665 


Art.  I.     Nature  and  Extent  of  the  Remedy. 


The  design  of  the  statutes  relative  to  mechanic's  liens  is  to  give 
security  to  those  who,  by  their  labor,  skill  and  materials,  add 
value  to  property,  by  a  pledge  of  the  interest  of  their  employer 
for  their  payment  and  to  subordinate  other  interests  to  that  end. 
David  V.  A  Ivor d,  94  U.  S.  945. 

The  remedy  is  substantially  a  proceeding  z«  rem  so  far  as  it 
undertakes  to  subject  a  specific  property  to  the  enforcement  of 
the  debt  secured  by  the  lien.  Grant  v.  Vafidercook,  57  Barb. 
165;  Randolph  v.  Leary.,  3  E.  D,  Smith,  637;  Qiiinby  v.  Sloan,  2 
Abb.  93.  The  foundation  of  the  claim  is  an  indebtedness  exist- 
ing upon  contract,  express  or  implied,  in  favor  of  the  person  who 
seeks  to  subject  the  property  to  the  lien.  Knapp  v.  Broivn,  45 
N.  Y.  207;  Muldoon  v.  Pitt,  54  N.  Y.  269;  Cornell  v.  Barney^ 
94  N.  Y.  394.  The  interest  obtained  through  the  lien  may  be 
assigned.  Smith  v.  BaiUy,  8  Daly,  128.  It  differs  from  the  lien 
of  a  judgment  in  that  it  affects  only  the  real  estate  on  which  the 
work  is  done.  Freeman  v.  Cram,  3  N.  Y.  305.  Both  tlic  land 
and  the  buildings  thereon  are  subject  to  the  lien.  Myres  v.  Ben- 
nett,  7  Daly,  471.  An  equitable  as  well  as  a  legal  estate  are 
bound  by  it.  Belmont  v.  Smith,  i  Duer,  675  ;  Rollins  v.  Cross, 
45  N.  Y.  'j66;  MusJilitt  v.  Silverman,  50  N.  Y.  360;  Benton  v. 
Wickwire,  54  N.  Y.  226;  Freeman  v.  Cram,  3  N.  Y.  305;  Hn/f- 
dell  V.  Schreycr,  15  Abb.  (N.  S.)  300.  Diigan  v.  Brophy,  55  How. 
151,  and  Cheney  v.  Troy  Hospital  Assn,  65  N.  Y.  282,  so  far  as 
they  hold  that  the  remedy  is  in  derogation  of  the  common  law 
and  the  statute,  and  must  be  strictly  construed,  seem  to  be 
rendered  obsolete  by  the  express  provisions  of  the  statute  that  it 
is  to  be  construed  "liberally  to  secure  the  beneficial  interests  and 
purposes  thereof." 

But  it  is  held  in  Spriick  v.  McRobcrts,  139  N.  Y.  193.  that 
while  a  mechanic's  lien  law  must  receive  a  liberal  construction  to 
secure  the  beneficial  purpose  had  in  view  by  the  Legislature,  yet 
as  it  creates  a  remedy  not  known  to  the  common  law,  it  may  not  be 
extended  to  cases  not  fairly  within  its  general  scope  and  purview. 
There  is  no  constitutional  objection  to  mechanic's  lien  law. 
Glacins  v.  Black,  Gj  N.  Y.  563. 

The  lien  law  is  not  to  be  deemed  unconstitutional  upon  the 
ground  that  if  enforced  against  a  subsequent  purcha.ser  it  will 
deprive  him  of  property  without  due  process  of  law.  Blauvclt  v. 
Woodworth,  3 1  N.  Y.  285.    The  mechanic's  lien  law  does  not  affect 


(i66  mechanic's  lien. 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 


a  contract,  but  provides  a  new  remedy.  Houptman  v.  Catliti, 
20  N.  Y.  247.  Mechanic's  lien  laws  give  a  personal  right  to  a 
mechanic,  materialman  and  laborer  for  his  own  personal  protec- 
tion. Rollin  V.  Cross,  45  N.  Y.  766.  Proceedings  to  impose  and 
enforce  mechanic's  liens  rest  entirely  upon  the  statute,  and  the 
court  cannot  supply  supposed  defects.  Benton  v.  Wickwire,  54 
N.  Y.  226. 

A  micchanic's  lien  cannot  be  enforced  against  the  real  estate  of 
a  municipal  corporation  held  for  public  use  except  under  an  ex- 
pressed statutory  authority.  Leonard  v.  City  of  Brooklyn,  71 
N.  Y.  498.  The  lien  of  a  mechanic  is  a  remedy  in  the  nature  of  a 
charge  on  land  given  by  statute  to  the  persons  named  therein,  to 
secure  a  priority  or  preference  of  payment  for  the  performance  of 
labor  or  supply  of  materials  to  buildings  or  other  improvements 
to  be  enforced  against  the  particular  property  in  which  they  have 
become  incorporated  in  the  manner  and  under  the  limitations 
therein  expressly  provided.     Phillips  on  Mechanic's  Liens,  §  9. 

The  filing  of  a  lien  does  not  give  a  right  to  have  a  receiver 
appointed  pending  action  to  foreclose.  Meyer  v.  Seebald,  ii 
Abb.  326.  The  right  to  file  a  mechanic's  lien  terminates  with 
the  death  of  the  owner,  and  so  for  work  done  prior  to  such  death 
under  a  contract  made  with  the  owner,  the  contractor  cannot 
acquire  a  lien  by  filing  notice  thereof  after  his  death.  Tnbridy  v. 
Wright,  144  N.  Y.  519,  affirming  7  Misc.  403;  citing  Crystals. 
Flannelly,  2  E.  D.  Smith,  583;  Meyers  v.Bemiett,  7  Daly,  471  ; 
Brown  v.  Zeiss,  9  Daly,  240;  Leavy  v.  Gardner,  63  N,  Y.  624, 

ARTICLE    IL 

By  and  Against  Whom   and   in  What  Cases   Lien  Ac- 
quired, §  I. 

g  1.  [Am'd,  Chap.  673,  Laws  of  1895.]  How  and  by  whom  lien  acqviired. 

Any  person  or  persons,  firm  or  firms,  corporation  or  association  who  shall 
hereafter  perform  any  labor  or  service,  or  furnish  any  materials,  which  have 
been  used  or  which  are  to  be  used  in  erecting,  altering  or  repairing  any  house, 
wharf,  pier,  bulkhead,  bridge,  vault,  building  or  appurtenances  to  any  house, 
building  or  building  lot,  including  fences,  sidewalks,  pavings,  fountains,  fish 
ponds,  fruit  and  ornamental  trees,  or  who  shall  dredge,  fill  in,  grade  or  other- 
wise alter  or  improve  land  under  water,  meadow,  marsh,  swamp  or  other  low 
lands,  or  who  shall  hereafter  perform  any  labor  or  services,  or  furnish  any 
materials  which  have  been  used  in  improving  or  equipping  any  house,  building 
or  appurtenances  with  any  chandeliers,  brackets  or  other  fixtures  or  apparatus 


mechanic's  lien.  667 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 

for  supplying  gas  or  electric  light,  with  the  consent  of  the  owner,  as  hereinafter 
defined,  or  his  agent  or  any  contractor,  or  sub-contractor,  or  any  other  person 
contracting  with  such  owner  to  erect,  dredge,  fill  in,  grade,  alter,  repair,  im- 
prove or  equip  as  aforesaid,  within  any  of  the  citi.es  or  counties  of  this  State, 
may  upon  filing  the  notice  of  lien  prescribed  in  the  fourth  section  of  this  act 
have  a  lien  for  the  principal  and  interest  of  the  price  and  value  of  such  labor, 
services,  and  material  upon  such  house,  wharf,  piers,  bulkheads,  bridges,  vault, 
building  or  appurtenances,  and  upon  the  lot,  premises,  parcel  or  farm  of  land 
upon  which  the  same  may  stand  or  be  intended  to  stand,  or  which  is  graded, 
dredged  or  filled  in,  to  the  extent  of  the  right,  title  and  interest  at  that  lime 
existing  of  such  owner,  whether  owner  in  fee  or  of  a  less  estate,  or  whether  a 
lessee,  for  a  term  of  years,  or  vendee  in  possession  under  a  contract  existing  at 
the  time  of  the  filing  of  said  notice  of  lien,  or  of  the  owner  of  any  right,  title 
or  interest  in  such  estate,  which  may  be  sold  under  an  execution  under  the 
general  provisions  of  the  statutes  in  force  in  this  State  relating  to  liens  of 
judgment  and  enforcement  thereof,  and  also  to  the  extent  of  the  interest 
which  the  owner  may  have  assigned  by  a  general  assignment  for  the  benefit 
of  creditors,  within  thirty  days  prior  to  the  time  of  filing  the  notice  of  lien 
specified  in  the  fourth  section  of  this  act.  But  in  no  case  shall  such  owner  be 
liable  to  pay  by  reason  of  all  the  liens  filed  pursuant  to  this  act,  a  greater  sum 
than  the  price  stipulated  and  agreed  to  be  paid  in  such  contract,  and  remaining 
unpaid  at  the  time  of  filing  such  lien,  or,  in  case  there  is  no  contract,  then  the 
amount  of  the  value  of  such  labor  and  material  then  remaining  unpaid  except 
as  hereinafter  provided. 

Sub.  I.  By  whom  lien  m.a.y  be  filed. 

2.  ag.4inst  whom  lien  may  be  filed. 

3.  to  what  property  lien  attaches. 

4.  Miscellaneous  provisions  as  to  validity  of  liens. 

Sub.  I.    By  Whom  Likn  may  be  Filed. 

The  only  limitation  to  the  right  of  a  minor  to  file  a  lien  seems 
to  arise  upon  the  fact  that  the  lien  is  dependent  upon  the  exist- 
ence of  a  contract,  but  as  the  disability  of  the  minor  is  a  per- 
sonal privilege,  his  minority  is  of  little  avail  as  a  defence  to  his 
lien  where  a  party  has  received  his  services  or  materials.  J 'a/! 
Bramer  v.  Cooper,  2  Johns.  279;  Gates  \.  Davenport,  29  Barb. 
160;    WhitemarsJi  v.  Hall,  3   Den.  375. 

The  language  of  the  act  is  very  broad  and  there  is  no  limitation 
in  its  language  or  any  good  reason  for  reading  one  into  it  by 
which  the  mechanic  is  required  to  be  a  resident  of  the  State  and 
to  make  his  contract  here.  If  the  materials  have  been  furnished 
and  used  in  the  erection  of  a  building  within  the  State,  the  right 
of  the  materialman  to  a  lien  follows  if  the  other  statutory  provi- 
sions are  complied  with.  Campbell  v.  Coon,  149  N.  Y.  556, 
reversing  8  Misc.  234. 


668  mechanic's  lien. 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 

When  plaintiff  and  his  partner  had  contracted  to  do  work  in  a 
building  and  the  partner  retired  from  the  firm  before  the  work 
was  completed,  assigning  the  assets  of  the  firm  to  plaintiff,  it  was 
held  plaintiff  was  entitled  to  file  a  lien.  Ogden  v.  Alexander,  63 
Hun,  56,  43  St.  Rep.  829,  17  Supp.  641. 

Parties  furnishing  labor  or  materials  under  a  general  employ- 
ment may  acquire  a  lien  therefor.  Smith  v.  Coe,  2  Hilt.  365. 
A  mechanic's  lien  can  include  only  labor  and  materials  furnished 
by  the  lienor  or  by  others  employed  by  him,  and  not  materials  or 
labor  procured  by  him  as  the  agent  for  defendant  and  in  his  name 
and  on  his  credit,  although  afterward  actually  paid  for  by  the 
lienor.  Kerby  v.  Daly,  45  N.  Y.  84.  Where  a  contract  imposed 
on  the  builder  the  duty  of  removing  rock  preparatory  to  laying 
foundation  walls,  powder  and  fuse  furnished,  necessary  for  blast- 
ing the  rock,  must  be  classed  as  materials  within  the  meaning  of 
the  lien  law.  Hazard  Powder  Co.  v.  Burns,  21  How.  189,  12  Abb. 
469.  The  lien  of  a  materialman  cannot  be  affected  by  a  subsequent 
arrangement  between  the  owner  and  contractor.  Jeiiks  v.  Broivn, 
66  N.  Y.  629.  One  who  furnished  materials  to  the  contractor  is 
entitled  to  the  amount  due  him  on  filing  a  lien,  although  the  con- 
tractor abandoned  the  work,  when  the  owner  finished  it  under 
a  clause  giving  him  the  right  to  do  so,  and  to  charge  the  expense 
to  the  contractor.  Crawford  v.  Becker,  13  Hun,  375.  But  where 
the  owner  before  the  filing  of  the  lien  by  a  materialman,  paid  the 
contractor  in  pursuance  of  the  contract  for  all  that  he  had  done, 
and  the  latter  made  default  and  abandoned  the  contract,  the 
owner  is  not  liable.  Crainv.  Genin,  60  l^.Y .  127.  A  material- 
man who  has  furnished  materials  and  the  contractor  can  create 
no  valid  lien  on  the  premises  unless  something  is  due  from  the 
owner  to  the  contractor.     Dart  v.  Fitch,  23  Hun,  361. 

Joint  contractors  who  agree  to  divide  the  work  upon  the  con- 
tract between  them,  each  to  receive  payment  for  the  portion  per- 
formed by  him,  thereby  become  sub-contractors  and  each  is 
entitled  to  file  a  separate  lien  for  the  amount  due  him.  Strobelv. 
Osche,  14  Misc.  522,  35  N.  Y.  Supp.  1089,  70  St.  Rep.  707. 
Where  a  contractor  by  a  provision  on  his  contract  waives  his  right 
to  file  a  mechanic's  lien,  any  party  interested  may  demand  a  strict 
performance  of  the  contract.  Matthezvs  v.  Yon?ig,  16  Misc.  525. 
An  architect  is  not  entitled  to  file  a  mechanic's  lien  asrainst 
premises  based  simply  upon  services  rendered  and  the  production 


mechanic's  lien.  669 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 


of  plans  and  specifications.  He  is,  however,  entitled  to  a  lien  for 
expenses  incurred  about  the  construction  of  the  building.  Rinn 
V.  Electric  Power  Co.  3  App.  Div.  305. 

It  was  held  under  the  Laws  of  1875  that  a  materialman  could 
acquire  a  lien  only  to  the  extent  of  the  sum  due  from  the  owner 
to  the  contractor  at  the  time  of  fiUng  the  Hen  and  that  if  the 
owner  had  before  that  time,  at  the  request  of  the  contractor, 
accepted  his  orders  in  favor  of  other  creditors,  such  acceptance 
constituted  payment  to  that  extent  and  defeated  the  lien. 
Gibso7i  V.  Lenane,  94  N.  Y.  183.  Under  the  Laws  of  1873  it  was 
held  that  the  consent  of  the  owner  in  making  the  erections  and 
improvements  upon  real  estate  was  sufficient  to  give  a  lien,  and 
that  it  was  not  necessary  he  should  contract  directly  for  them. 
Otis  V.  Dodd,  90  N.  Y.  336. 

Sub.  2.  Against  Whom  Lien  may  be  Filed. 
Under  the  provisions  of  §  i,  that  any  person  performing  labor, 
etc.,  "with  the  consent   of  the  owner,"  as  therein  defined,  may, 
upon  filing  notice,  have  a    lien,  and  that  where  the  owner  of  the 
premises  "has  made  an  agreement  to  sell  and  convey  to  the  con- 
tractor or  other  person,  such  owner  shall  be  deemed  to  be  the 
owner  "  until  the  deed  has  been  delivered  and  recorded  ;  where  an 
owner  has  contracted  to  sell  and  advance  moneys  to  enable  the 
purchaser  to  build,  which  the  latter  agrees  to  do,  title  of  the  land 
not  to  pass  until  the  completion   of  the  building,  the  purchaser 
agreeing  to  give  a  mortgage  on  the  land   for  the   purchase-price 
and  the  moneys  advanced ;  it  is  not  necessary-,  in  order  to  sustain 
a  lien  for  work  or  materials  used   in   the  building,    to  show  an 
express  consent  of  the  owner;    the  contract   itself,  and  the   fact 
that    the   work  was   prosecuted    under    it    with    his    knowledge, 
authorize  a  finding  of  consent.     The  lien  of  a  mechanic  or  mate- 
rialman  in  such  case  is  not   limited   to  so  much  of  the  sum  as 
the   owner    agreed    to  advance,   which    had  not    been   advanced 
at  the  time  of  filing  the  notice  of  lien,  but   is  for  the  whole  of 
the  unpaid  indebtedness  to  the  lienor,  and  where  such  a  contract 
was  made  for  the  benefit  of  tiie  owner,  a  married  woman,  by  her 
husband  in  his  own  name,  but  was  soon  after  its  execution  assigned 
to  her  and  she  made  the  advances  of  money  as  .stipulated,  held,  that 
a  mechanic's  lien  could  be  acquired  under  the  act  as  against  her. 
Schmalz  v.  Mead,  125   N.  Y.  188.  distinguishing  Loonie  v.  Hogan, 


670  mechanic's  lien. 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 

9  N.  Y.  435,  and  citing  Hackctt  v.  Bademi,  6},  N.  Y.  476; 
Hustedv.  Mat/us,  77  N.  Y.  388;  Nellis  v.  Be/linger,  6  Hun,  560; 
Otis  V.  Dodd,  90  N.  Y.  336,  It  is  further  held  in  the  principal 
case  that  it  would  be  manifestly  unjust  to  permit  the  owner  to 
enjoy  the  benefits  from  the  enhanced  value  of  the  land  without 
liability  for  any  part  of  the  .labor  or  material  which  produced 
them,  citing  Rollm  v.  Cross,  45  N.  Y.  766;  Biirkitt  v.  Harper,  79 
N.  Y.  273.  Schmalz  v.  Mead,  was  distinguished  and  explained 
in  Miller  v.  Mead,  127  N.  Y.  544. 

In  Coiven  v.  Paddock,  137  N.  Y.  188,  50  St.  Rep.  386,  it  is  held 
that  while  the  consent  required  by  §  i  of  this  act,  in  order  to 
make  the  owner  liable  for  work  done  or  materials  furnished  in  the 
improvement  of  his  premises,  need  not  be  expressly  given  but 
may  be  implied  from  the  conduct  and  attitude  of  the  owner  with 
respect  to  such  improvements,  the  facts  from  which  the  inference 
of  a  consent  may  be  drawn  must  be  such  as  to  indicate  a  willing- 
ness on  his  part  to  have  the  improvements  made  or  an  acquies- 
cence in  the  means  adopted  for  that  purpose  with  knowledge  of 
the  object  for  which  they  were  employed. 

Under  this  act  the  incumbrance  is  imposed  upon  real  estate 
only  when  the  work  is  performed  or  materials  furnished  in  pur- 
suance of  some  contract  with  the  owner  or  when  his  consent  is  in 
some  way  established  ;  when  a  mechanic  or  materialman  proposes 
to  expend  labor  or  material  upon  land  under  a  contract  with  the 
person  in  possession,  it  is  incumbent  upon  him  to  inquire  and 
assure  himself  of  the  fact  that  such  person  has  in  fact,  such  an 
estate  or  interest  in  the  land  as  will  enable  him  to  assert  the 
statutory  lien ;  if  the  person  in  possession  has  no  such  interest, 
the  statute  does  not  impose  a  lien  upon  the  estate  of  the  true 
owner  unless  he  is  in  some  way  connected  with  the  contract  or 
has  given  his  consent  to  the  expenditure  in  such  a  manner  as  to 
bind  him  within  the  recognized  principles  of  equity.  Spriuk  v. 
McRoberts,  139  N.  Y.  193,  54  St.  Rep.  461.  The  same  rule  is 
held  in  Stei'ens  v.  Ogden,  130  N.  Y.  182;  McCorkle  \.  Herrman, 
117  N.  Y.  297. 

Consent  of  the  owner  to  the  furnishing  of  work  and  materials 
is  sufficient  without  regard  to  the  existence  of  a  written  contract. 
Marshall  V.  Coheti,  11  Misc.  397;  32  Supp.  282;  65  St.  Rep.  310. 
Consent  of  the  owner  may  be  predicated  on  his  agreement  with 
the  lessee  by  which  the  latter  undertakes  to  make  improvements 


mechanic's  lien.  ^  671 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 

and  repairs  at  hi.s  own  expense.  Moshcr  v.  Lewis,  10  Misc.  373, 
31  Supp.  433,  64  St.  Rep.  117.  To  render  the  lien  effectual  to 
charge  the  land,  it  must  appear  affirmatively  either  that  the  work 
was  done  or  materials  furnished  at  the  request  of  the  owner  or  his 
agent,  or  of  the  person  contracting  with  the  owner;  in  the  absence 
of  proof  of  such  request  or  consent  the  owner's  interest  in  the 
land  is  not  chargeable.  Rossi  w.  MacKellar,  13  Supp.  827,  37 
St.  Rep.  503. 

The  Legislature  in  authorizing  a  lien  where  the  claim  of  the 
laborer  or  materialman  arose  at  the  owner's  request,  intended  to 
enforce  the  equitable  principle  that  one  who  knowingly  takes  the 
benefit  of  the  property  or  labor  of  another  in  the  form  of 
improvements  made  on  his  land,  ought  to  have  the  land  sub- 
jected to  the  Hen,  and  the  doctrine  of  consent  extends  to  cases 
where  an  owner,  by  his  acts  and  declarations,  impliedly  consents 
to  the  erection  of  buildings  on  his  land.  Nellis  v.  Bellinger,  6 
Hun,  560;  Otis  v.  Dodd,  90  N.  Y.  336.  And  the  consent  of  the 
owner  will  be  implied  if  it  appears  that  the  work  proceeded  with 
his  knowledge  and  approval.  Helkvig  v.  Blumcnbcrg,  7  Supp. 
746;  Husted  v.  Mathes,  -jy  N.  Y.  389;  Kcalcj  v.  Murray,  15 
Supp.  403,  40  St.  Rep.  23. 

Where  a  vendor  agrees  with  the  vendee  that  the  latter  shall 

erect  buildings  on  the  land,  it  is  an  implied  consent  by  the  owner 

of  the  fee  that  the  materials  for  such  building  may  be  furnished 

and  the  labor  necessary  in  their  construction  may  be  performed. 

Hackett  v.  Badeau,  63  N.  Y.  476.     See,  also.  Hart  v.  Wlicilcr,  i 

T.  &  C.  403 ;  Nellis  v.  Bellinger,  6  Hun,  560;  Gates  v.  Wliitcomb, 

4  Hun,  137.      The  consent  of  a  married  woman  will  be  inferred 

when  having  knowledge  of  the  fact  that  improvements  arc  being 

made  on  her  lands  by  her  husband,  she  interposed  no  objection. 

Husted  V.  Mathes,  jj  N.  Y.  389;  Schmah  v.  Mead,  125  N.  Y.  188. 

Where  the  owner  agrees  to  sell   to  a  builder,  make  a  builder's 

loan  and  take  a  mortgage  on  completion,  at   which   time  he  is  to 

give  a  deed,    he  thereby  consents  to   the   improvement   by  the 

builder;  while  he   retains  title  the  property   is  bound   by  a  me- 

chanic's  lien   for  work  and   materials  furnished  by  the  builder. 

Hobby  V.  Day,  22  St.  Rep.  92,   3  Supp.  900.     Where  the  owner 

completes  the  work  according  to  the  terms  of  the  contract,  the 

contractor  having  abandoned  it,  the  liens  of  materialmen  attach 

to  any  balance  of  the  contract  price  remaining  after  deducting 


6/2  mechanic's  lien. 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 


the  amount  paid  to  the  contractor  and  the  expense  of  completing 
the  work.  McKee  v.  Rapp,  69  St.  Rep.  291,  35  Supp.  175  ;  follow- 
ing Ogden  V.  Alexander,  140  N.  Y.  356. 

Although  nothing  is  due  a  contractor  where  a  lien  is  filed  by  a 
sub-contractor,  and  the  contractor  abandons  the  work;  if  the 
owner  completes  the  building  according  to  the  contract  and 
under  a  provision  authorizing  him  so  to  do,  the  lien  of  the  sub- 
contractor attaches  to  the  extent  of  the  difference  between  the 
cost  of  completion  and  the  amount  unpaid  to  the  contractor 
when  the  lien  was  filed.  And  in  such  case  an  architect's  certifi- 
cate is  not  necessary  to  enable  the  sub-contractor  to  enforce  the 
lien,  although  required  by  the  original  contract  between  the  owner 
and  contractor.  Campbell  v.  Coon,  149  N.  Y.  556,  reversing  8 
Misc.  234,  following  Van  Clief\.  Van  Vechten,  130  N.  Y.  571, 
distinguishing  Birmingham  Foundry  v.  Glen  Cove  Mfg.  Co.  78 
N.  Y.  130. 

Where  an  unfinished  skating  rink  was  leased  to  an  irresponsi- 
ble person,  who  completed  the  building  and  paid  no  rent,  and  the 
lessor's  husband  made  the  building  contracts  for  the  tenant  and 
offered  to  pay  for  the  work,  and  as  soon  as  the  building  was  com- 
pleted the  lessor  took  possession,  it  was  held  she  had  consented 
to  the  completion  of  the  building.  Ottizvcllv.  Watkins,  15  Daly, 
308,  affirmed,  125  N.  Y.  706. 

An  owner  of  a  building  who  has  not  covenanted  to  repair  is  not 
chargeable  with  repairs  made  by  a  tenant  by  reason  of  his  knowl- 
edge and  acquiescence  therein.  McAuley  v.  Hatfield,  59  St.  Rep. 
552,  28  Supp.  648.  But  where  the  owner  knew  work  was  done 
by  plaintiff  under  agreement  with  the  contractor,  who  had  taken 
the  contract  to  build  defendant  a  house  and  proved  that  the 
work  was  done  under  defendant's  architect,  it  was  held  to  warrant 
a  recovery.  Neiv  v.  Carnell,  73  Hun,  564,  56  St.  Rep.  425,  26 
Supp.  320. 

The  owner  of  land  having  made  a  contract  for  the  doing  of 
work  and  furnishing  materials  for  building,  will  be  held  to  have 
consented  that  the  materials  used  in  the  erection  thereof  shall  be 
furnished  the  contractor  or  sub-contractor.  Wheeler  v.  Sco field, 
67  N.  Y.  311.  The  meaning  of  the  term  "with  the  consent  of 
the  owner"  is  considered  in  Riggs  v.  Chapin,  7  Supp.  765,  27  St. 
Rep.  268.  Where  the  contract  was  made  with  one  tenant  in 
common  only,  consent  of  the  other  tenant  to  the  work  will  not 


mechanic's  lien.  673 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 


render  him  liable  to  a  personal  judgment.  Smith  v.  O'Douneil, 
15  Misc.  98,  36  N.  Y.  Supp.  480.  Where  the  owner  has  actual 
notice  of  the  lienor's  claim,  he  cannot  avoid  liability  by  paying 
the  contractor.     Kc//y  v.  Bloomingdale,  19  Supp.   126. 

The  owner  of  land  who  has  contracted  to  sell  it,  is  to  be  deemed 
the  owner  under  the  Mechanic's  Lien  Law  until  the  deed  is  de- 
livered, although  the  purchaser  takes  possession  and  builds 
thereon.  Garland  v.  Van  Rensselaer,  71  Hun,  2,  54  St.  Rep. 
74,  24  Supp.  781.  A  widow  having  a  life  interest  in  property  so 
long  as  she  remains  unmarried,  subject  to  certain  charges,  is  an 
owner  under  the  Mechanic's  Lien  Law  as  to  alterations  and 
improvements  upon  the  premises.  Lang  v.  Efcrling,  3  Misc. 
530,  52  St.  Rep.  489,  23  Supp.  329. 

Where  a  lessee  under  a  lease  which  contained  no  permission  to 
erect  buildings,  constructed  them  on  the  land  leased,  it  was  held 
the  liens  did  not  attach  to  the  land.  Havens  v.  West  Side 
Electric  Light  &-  Pozvcr  Co.  44  St.  Rep.  589,  17  Supp.  580. 

The  fact  that  an  owner  does  not  eject  the  contractor  as  an 
intruder  does  not  make  him  liable  as  consenting  to  the  work  if 
he  has  forbidden  the  contractor  to  continue.  W^here  a  tenant 
entered  into  possession  under  a  contract  to  pay  rent  or  execute  a 
lease,  the  landlord  may  rescind  the  contract,  and  a  contract  for 
repairs  or  improvements  cannot  form  a  basis  of  a  lien  against  the 
landlord's  interest.  Lowryv.  Woolsey,  83  Hun,  257,  31  Supp.  i  loi, 
64  St.  Rep.  860.  Where  the  agency  is  denied,  it  raises  a  question 
of  fact,  and  it  is  error  to  exclude  evidence  on  the  subject.  Rope 
V.  Hess,  118  N.  Y.  668,  reversing  6  St.  Rep.  710.  Where  the  pur- 
chaser entered  under  a  contract  which  gave  no  right  of  possession, 
commenced  building  and  was  ejected  by  the  vendor,  it  was  held 
there  was  no  such  consent  or  knowledge  on  the  part  of  the  vendor 
as  to  sustain  a  mechanic's  lien  against  him.  Cowen  v.  Paddock,  43 
St.  Rep.  342,  17  Supp.  387.  Where  the  owner  contracted  to  sell 
the  land  to  defendant,  who  failed  to  make  the  payments  required 
by  the  contract  and  was  forbidden  to  enter  on  the  land  until  the 
first  installment  of  purchase  money  was  paid,  and  the  owner,  be- 
coming aware  that  work  was  begun,  directed  it. to  be  stopped,  work 
having  been  subsequently  resumed  without  proof  of  the  owner's 
permission,  the  vendee  was  subsequently  ejected  for  failure  to 
make  the  payments  required,  it  was  held  the  consent  of  the 
owner  could  not  be  inferred.  Cowen  v.  Paddock,  137  N.  Y.  188. 
[Special  Actions  —  43.] 


6/4  mechanic's  lien. 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 

Where  the  owner  of  the  building,  independently  of  a  lease, 
agrees  to  pay  for  certain  improvements  to  be  made  by  the  ten- 
ant, by  making  an  allowance  on  the  lease,  the  tenant  becomes 
principal  contractor  for  such  work;  the  building  is  not  subject  to 
mechanic's  liens.  Regan  v.  Borst,  ii  Misc.  92,  32  Supp.  810,  66 
St.  Rep.  193.  Where  the  owner  acts  solely  as  agent  of  his 
tenant,  his  consent  as  owner  can  not  be  inferred.  Havens  v. 
West  Side  Electric  Light  Co.  44  St.  Rep.  589,  affirmed,  20  Supp. 
764.  Where  the  contract  authorized  the  owner  to  complete  the 
work,  after  default  on  the  part  of  the  contractor,  the  lien  of  a 
sub-contractor  will  attach  to  whatever  sum  remains  due  on  the 
contract  price  after  deducting  therefrom  the  sums  paid  by  the 
owner  to  complete  the  work.  FosJiay  v.  Robinson^  137  N.  Y.  134. 
Where  there  was  no  provision  of  this  kind  in  the  contract  and 
the  contractor  failed  to  complete  his  work,  and  it  was  completed 
by  the  owner,  and  after  deducting  the  expense  a  balance 
remained,  it  was  held  that  plaintiff's  lien  could  not  be  sustained 
as  nothing  was  due  the  contractor  when  the  lien  was  filed  and 
nothing  became  due  to  him  thereafter  by  reason  of  his  breach. 
Hollister  v.  Mott,  132  N.  Y.  18.  See,  also,  Pell  v.  Baiir,  133 
N.  Y.  377.  A  lien  cannot  be  acquired  after  the  death  of  the 
owner  for  work  performed  or  material  furnished  during  his  life- 
time. Tiibridy  v.  Wright,  144  N.  Y.  519,  64  St.  Rep.  46,  affirm- 
ing 7  Misc.  403,  58  St.  Rep.  52,  27  Supp.  978. 

Sub.  3.  To  What  Property  Lien  Attaches. 

It  it  apparent  from  the  whole  statute  that  the  lien  attaches  and 
the  rights  of  the  claimant  as  against  the  owner  of  the  property 
becomes  fixed  on  filing  the  notice.  Kelly  v.  Bloomingdale,  139 
N.  Y.  348  ;  Kenny  v.  Apgar,  93  N.  Y.  541  ;  Hall  v.  Sheehan,  69 
N.  Y.  618.  A  lien  will  include  extra  work  ordered  at  various 
times  during  the  fulfillment  of  the  contract  though  more  than 
thirty  days  prior  to  the  filing  of  the  lien.  Costello  v.  Dale, 
I  Hun,  489,  3  T.  &  C.  493. 

Lien  extends  to  extra  materials  which  become  necessary  in 
consequence  of  defects  in  the  specifications.  McCauley  v.  Mil- 
dru7n,  I  Daly,  596.  It  only  extends  to  work  actually  performed 
under  the  contract,  not  for  damages  for  breach  of  contract,  Dennis- 
ton  V.  McAllister,  4  E.  D.  Smith,  729;  Nolan  v.  Gardner,  4  E.  D. 
Smith,  727  ;  Miiicr  v   Hoyt,  4  Hill,  193  ;  Hoyt  v.  Miner,  7  Hill,  525. 


mechanic's  lien.  675 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 

Services  rendered  by  an  architect  in  supervising  the  erection  oi 
a  building  are  the  subject  of  a  lien.  Strykcr  v.  Cassidy,  76  N.  V. 
50,  reversing  10  Hun,  18.  It  only  covers  labor  performed  and 
materials  furnished  by  the  parties  claiming  it  or  those  employed 
by  him ;  it  does  not  extend  to  materials  or  labor  procured  by  him 
in  his  name  and  on  his  credit.  Kerby  v.  Daly,  45  N.  Y,  84.  An 
entire  contract  for  digging  a  cellar,  erecting  foundations,  walls 
and  piers,  moving  a  building  and  furnishing  materials,  is  the  sub- 
ject of  a  lien.  Chase  v.  Janirs,  10  Hun,  506.  And  where  the 
contract  provides  for  blasting  and  removal  of  rock,  the  lien  em- 
braces powder  and  fuse  used  for  that  purpose.  Ha  card  Powder 
Co.  V.  Burtis,  21  How.  189. 

Mirror  frames  fastened  permanently  to  the  structure  and 
intended  to  be  used  in  and  pass  with  it,  form  part  of  the  realty 
and  are  within  the  statute.  Ward  v.  Kilpatrkk,  85  N.  V.  413. 
The  supply  of  a  furnace,  set  within  a  brick  structure,  and  its  con- 
necting pipes  and  appurtenances,  is  a  contribution  toward  the 
construction   of  a  house.      Schwartz  v.  Allen,  24  St.    Rep.   912, 

7  Supp.  5. 

Plaintiff  is  entitled  to  a  Hen  for  engine,  oil  traps,  foundation 
plates,  etc.,  furnished  for  a  brewery,  which  were  constructed  and 
firmly  annexed  to  the  freehold  with  the  intention  of  forming  a  per- 
manent accession  to  the  brewery.  Watts-Campbell  Co.  v.  Yueng- 
ling,  125  N.  Y.  I,  34  St.  Rep.  255,  affirming  51  Hun,  302,  21  St. 
Rep.  186,  3  Supp.  869.  A  sidewalk  was  held  to  be  an  appurte- 
nance to  the  lot  in  front  of  which  it  was  laid  within  the  meaning 
of  the  Lien  Law  in  Kemiy  v.  Apgar,  93  N.  Y.  539. 

A  lien  may  be  acquired  under  the  statute  for  grading  and  lay- 
ing out  roadways  and  sidewalks  on  the  tract  intended  for  build- 
ing lots,  although  there  is  no  building  on  the  tract.  Frederieks 
V.  Goodman,  etc.  Ass  71,  29  Supp.  1041,  61  St.  Rep.  650.  The 
language  of  the  statute  is  broad  enough  to  include  a  claim  for 
terracing  and  sodding  the  yard  of  a  building  lot.  Pickett  v. 
Gollner,7  Supp.  196,  26  St.  Rep.  691.  Also  hoisting  apparatus 
furnished  and  used  in  erection  of  a  building.  Dickson  v.  La 
Faro-e,  i  E.  D.  Smith,  722.  And  theatre  chairs  manufactured 
with  special  reference  to  the  building  and  attached  to  it.  Grosz 
V.  Jackson,  6  Daly,  463. 

Where  the  lots  or  parcel  of  land  contain  several  buildings  which 
are  bein^^  erected   under  one  contract,  the  lands  and  buildings 


676  mechanic's  lien. 


Art.  2.      By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 

embraced  within  the  contract  will  be  subject  to  the  lien.  Moran 
V.  Chase,  52  N.  Y.  346;  Hall  v.  SJieeJian,  69  N.  Y.  618;  Livings- 
ton V.  Miller,  16  Abb.  Pr.  71  ;  Payn  v.  Bonney,  4  E.  D.  Smith, 
734.  Where  extra  work  is  performed  for  the  owner  and  in  pur- 
suance of  employment  by  him  or  by  his  direction,  a  lien  may  be 
acquired  therefor.  Morgan  v.  Stevens,  6  Abb.  N.  C.  357;  Cas- 
sidy  V.  Fonthavi,  14  Supp.  151,  38  St.  Rep.  177. 

Where  a  clause  in  the  contract  authorized  the  owner  to  request 
"alterations,  deviations,  additions  or  omissions  from  said  contract" 
to  be  added  to  or  deducted  from  the  amount  of  the  contract,  it 
was  held  the  amount  due  for  extra  work  is  money  due  the  con- 
tractor and  applicable  to  the  satisfaction  of  the  lien.  Blakesleev. 
Fisher,  21  Supp.  217.  Where  the  consent  of  the  owner  cannot 
be  shown  and  contract  was  with  the  tenant  only,  the  fee  cannot 
be  subjected  to  the  operation  of  the  lien,  and  where  the  contract 
was  made  with  the  tenant  his  interest  alone  can  be  subjected  to 
the  lien.  Cornell  v.  Bartiey,  26  Hun,  134,  94  N.  Y.  394;  Knapp 
V.  Broivn,  45  N.  Y.  207;  Muldoonv.  Pitt,  54  N.  Y.  269. 

The  interest  of  such  lessee,  however,  embraces  all  improvements 
erected  by  him  which  may  be  removed  without  injur)'-  to  the 
freehold.  Onibony  v.  Jones,  19  N.  Y.  234.  A  cancellation  of  a 
lien  by  a  deposit,  merely  discharges  the  lien  so  far  as  it  affects 
the  real  estate  and  shifts  the  lien  to  the  funds  so  deposited.  The 
lien  thus  imposed  on  the  fund  is  not  discharged  by  lapse  of  time, 
there  being  no  statutor^^  provision  requiring  that  the  action  to 
establish  the  lien  on  the  fund  should  be  brought  within  one  year, 
nor  any  provision  that  the  lien  upon  the  fund  must  be  continued 
by  an  order  of  the  court.  Hafkcrv.  Henry,  5  App.  Div.  258.  An 
inchoate  right  of  dower  is  not  subject  to  a  mechanic's  lien,  although 
the  wife  agreed  to  pay.  Johnston  v.  DaJilgren,  14  Misc.  623,  36 
N.  Y.  Supp.  806. 

Sub.  4.  Miscellaneous  Provisions  as  to  Validity  of  Liens. 
Substantial  performance  of  a  contract  is  sufficient  to  sustain  a 
mechanic's  lien.  MurpJiy  v.  Simonds,  82  Hun,  158,  31  Supp.  295, 
63  St.  Rep.  744.  But  where  the  contractor  has  failed  to  perform 
a  substantial  part  of  the  work  and  there  is  no  provision  that  the 
owner  shall  complete  it  and  no  failure  of  the  owner  to  perform 
his  obligation,  a  sub-contractor  can  recover  nothing  under  a  me- 
chanic's lien.     Smith  v.  Sheltering  Anns,  89  Hun,  70,  35  Supp. 


mechanic's  lien.  677 


Art.  2.     By  and  Against  Whom  and  in  What  Cases  Lien  Acquired. 


62,  69  St.  Rep.  273.  And  where  the  work  is  abandoned  by  the 
contractor  and  completed  by  the  owner  under  contract,  the  hens 
of  materialmen  and  sub-contractors  are  enforcible  against  the  bal- 
ance of  the  contract  price  remaining  after  deducting  the  cost  of 
completion.  McKce  v.  Rapp,  35  Supp.  175,  69  St.  Rep.  291. 
However,  where  sub-contractors  voluntarily  surrender  their  con- 
tract and  at  their  request  the  contractor  assumes  charge  of  the 
work,  and  completes  it  on  their  account,  the  creditors  of  the  sub- 
contractors are  not  entitled  to  recover  upon  liens  filed  by  them 
except  on  proof  that  some  amount  was  due  such  sub-contractors 
after  deducting  the  cost  of  completion.  Brainard  v.  County  of 
Kings,  84  Hun,  290,  32  Supp.  311,  65  St.  Rep.  468. 

The  labor  must  be  shown  to  be  part  of  a  continuous  work ;  it 
cannot  avail  if  it  appears  to  have  been  resorted  to  as  a  pretext  for 
evading  the  law.  J^uffy  v.  Baker,  17  Abb.  N.  C.  357.  Service 
upon  the  owner  of  notice  of  the  lien  is  not  necessary  to  preserve 
it,  the  object  of  the  service  is  to  prevent  payments  by  the  owner 
after  filing  the  lien.     Kenncy  v.  Apgar,  93  N.  Y.  541. 

It  was  held  in  Roberts  v.  Fowler,  3  E.  D.  Smith,  632,  that  the 
right  to  acquire  a  lien  was  a  purely  personal  one,  and  could  not 
be  assigned,  but  in  Rollin  v.  Cross,  45  N.  Y.  766,  and  Hallalian 
V.  Herbert,  57  N.  Y.  409,  an  assignment  was  recognized.  These 
decisions,  however,  are  unimportant  by  reason  of  §  17  of  the  Act. 
In  order  to  constitute  an  equitable  assignment,  the  order  must 
not  be  general  in  its  terms,  but  must  be  drawn  upon  a  particular 
fund  or  upon  a  particular  contract.  Hiird  v.  Johnson  Park  In- 
vestment Co.,  13  Misc.  643  ;  S.  C.,69  St.  Rep.  141  ;  34  Supp.  915. 
The  right  to  a  lien  may  be  waived  by  express  agreement. 
Tombs  V.  Rochester  R.  R.  Co.  18  Barb.  583.  And  a  consent  by 
parties  to  submit  their  respective  claims  to  arbitration  is  a  waiver 
of  the  right  to  enforce  a  demand  by  filing  a  lien.  Nezv  York 
Lumber  and  Wood  Working  Co.  v.  Schneider,  1  Supp.  441,  16 
St.  Rep.  698.  But  it  seems  otherwise  if  by  the  terms  of  the  con- 
tract an  arbitration  has  not  been  provided  for.  Cooke  v.  Odd 
Fellows  Fraternal  Union,  49  Hun,  23. 

Where  the  contract  provided  that  differences  between  the  par- 
ties should  be  submitted  to  arbitration,  and  it  did  not  appear  de- 
fendant took  any  steps  to  arbitrate,  the  defence  was  held  to  be 
unavailing.  Smith  v.  Alker,  102  N.  Y.  87.  Substantial  perform- 
ance of  the  requirements  of  the  contract  is  an  essential  to  author- 


678  mechanic's  lien. 

Art.  3.     Notice  of  Lien  and  Filing. 

ize  its  enforcement  by  the  lienor,  but  this  does  not  require  a 
literal  performance.  Glacius  v.  Black,  50  N.  Y.  145  ;  Johnson  v. 
De  Peyster,  50  N.  Y.  666;  Phillip  v.  Gallant,  62  N.  Y.  264;  Heck- 
niann  v.  Pinkney,  81  N.  Y,  211  ;  Woodward  v.  Fuller,  80  N.  Y. 
312;  Wright  V.  Roberts,  118  N.  Y.  672;  Murphy  v.  Simonds,  82 
Hun,  158,  31  Supp.  295,  63  St.  Rep.  744. 

A  lien  may  be  filed  in  anticipation  of  work  to  be  done  or  mate- 
rials to  be  furnished,  and  if  an  action  is  brought  to  foreclose 
before  the  work  has  been  completed,  a  recovery  may  be  had  for 
all  that  is  due  at  the  time  of  trial.  Ringle  v.  Wallis  Iron  Works, 
85  Hun,  279,  32  Supp.  ion,  66  St.  Rep.  494.  A  mere  agreement 
to  take  notes  in  payment  does  not  deprive  a  mechanic  of  his  right 
to  file  a  lien.  Kcogh  v,  Eisenberg,  7  Misc.  79,  27  Supp.  356,  57 
St.  Rep.  91  ;  also,  Bates  v.  Trustees  Masonic  Hall  Asylum  Fund, 
7  Misc.  609,  27  Supp.  951,  58  St.  Rep,  790. 

ARTICLE    HI. 
Notice  of  Lien  and  Filing.    §4. 

Sub.  I.  Notice  of  lien  and  filing.     §  4. 
2.  Verification  of  lien. 

Sub.  I.   Notice  of  Lien  and  Filing. 

§  4.  Notice  of  lien  ;  filing  and  requisites  of;  notice  upon  owner. 

At  any  time  during  the  performance  of  the  work  or  the  furnishing  of  the  mater- 
ials, or  within  ninety  days  after  the  completion  of  the  contract  or  the  final  perform- 
ance of  the  work,  or  the  final  furnishing  of  the  material  for  which  a  lien  is  claimed, 
dating  from  the  last  item  of  work  performed  or  from  the  last  item  of  material  fur- 
nished, the  person  or  persons,  firm  or  firms,  corporation  or  association  furnishing 
such  materials  or  performing  such  labor  or  service  may  file  a  notice  of  lien  in  writ- 
ing in  the  clerk's  office  in  the  county  where  the  property  is  situated  against  which 
the  lien  is  asserted,  containing  the  names  and  residences  of  the  claimants,  the  na- 
ture and  amount  of  the  labor  and  service  performed,  or  the  materials  furnished  or 
to  be  furnished,  with  the  name  of  the  owner,  lessee,  general  assignee  or  person 
in  possession  of  the  premises  against  whose  interest  a  lien  is  claimed  ;  the  name 
of  the  person  or  persons,  firm  or  firms,  corporation  or  association  by  whom  he 
was  employed,  or  to  whom  he  furnished  or  is  about  to  furnish  such  materials, 
or  whether  all  the  work  for  which  the  claim  is  made  has  been  actually  per- 
formed or  furnished,  and  if  not,  how  much  of  it,  and  also  a  description  of  the 
property  to  be  charged  with  a  lien  sufficient  for  identification,  and  if  in  a  city  or 
village  the  situation  of  the  building  or  buildings  by  street  and  number,  if  the 
street  and  number  be  known. 


mechanic's  lien.  679 


Art.  3.     Notice  of  Lien  and  Filing. 


But  the  failure  to  state  the  name  of  the  true  owner,  lessee,  general  assignee, 
or  person  in  possession  shall  not  impair  the  validity  of  the  lien. 

The  said  notice  of  lien  must  be  verified  by  the  person  or  one  of  the  persons, 
member  of  a  firm  or  firms,  an  oflScer  of  the  corporation  or  association  making 
the  claim  or  his,  its  or  their  agent,  to  the  effect  that  the  statements  therein  con- 
tained are  true  to  the  knowledge  or  information  and  belief  of  the  person 
making  the  same. 

The  county  clerk  of  each  county  shall  provide  and  keep  a  book  in  this  oflSce 
to  be  called  the  "  Lien  Docket,"  which  shall  be  suitably  ruled  in  columns  headed 
"  Claimants,"  "  Against  whom  Claimed,"  "  Owners  and  Parties  in  Interest," 
"  Premises,"  "  Amount  Claim.ed  ; "  in  which  he  shall  enter  the  particulars  of 
such  notice  of  lien  together  with  the  date,  hour  and  minute  of  filing  of  the 
notice  of  lien,  and  what  proceedings  have  been  had,  the  names  of  the  owners 
and  persons  in  interest,  and  other  persons  against  whom  the  claims  are  made, 
shall  be  entered  in  said  book  in  alphabetical  order.  A  fee  of  twenty  cents  shall 
be  paid  to  said  clerk  on  filing  such  notice  of  lien. 

Every  claimant  shall  within  ten  days  after  filing  his  notice  of  lien  as  herein 
provided,  serve  a  copy  of  such  notice  upon  the  owner  or  other  person  in  inter- 
est, by  delivering  the  same  to  him  personally  or  by  leaving  a  copy  thereof  at  his 
last  known  place  of  residence  in  the  city  or  town  in  which  such  lands  or  part 
thereof  are  situated,  with  some  person  of  suitable  age  and  discretion,  or  if  such 
owner  or  person  in  interest  has  no  such  residence,  or  such  person  cannot  be 
found,  by  affixing  a  copy  thereof  conspicuously  on  said  premises  described  in 
said  notice  of  lien  between  the  hours  of  nine  o'clock  in  the  morning  and  four 
o'clock  in  the  afternoon. 

And  after  such  service  such  owner  or  the  person  in  interest  shall  not  be  pro- 
tected in  any  payment  made  to  such  contractor  or  other  claimant. 

Under  the  Lien  Law,  the  fihng  of  the  prescribed  notice  origi- 
nates the  lien,  and  until  this  is  done  the  labor  or  materialman  has 
no  preferential  right  to  be  paid  out  of  a  sum  due  the  contractor 
from  the  owner  of  the  building.  If,  before  notice  is  filed,  the 
contractor  assigns  to  a  creditor  in  payment  of  his  debt,  the 
whole  or  any  portion  of  the  moneys  due  or  to  become  due  to  him 
on  his  contract,  the  a.s.signee  is  entitled  to  the  same  in  preference 
to  the  lienor.  Stevens  v.  Ogden,  130  N.  V.  182.  Same  rule  is 
applied  in  McCorklc  v.  Herrman,  117  N.  Y.  297. 

It  would  lead  to  great  embarra.ssment,  uncertainty  and  incon- 
venience if  a  person  receiving  money  from  a  builder  would  have 
to  ascertain  whether  he  obtained  it  under  a  building  contract 
before  he  could  safely  take  it  for  property  sold  or  apply  it  upon 
an  antecedent  debt  justly  due.  Mack  v.  Col/cran,  136  N.  Y.  617, 
citing  Payne  v.  Wilson,  74  N.  Y.  348.  A  mechanic's  lien  is  acquired 
by  filing  the  notice  prescribed  by  statute,  and  takes  effect  from 
the  time  of  .such  filing.  Sinclair  v.  Pitch,  3  E.  D.  Smith,  6yy \ 
Cox  V.  Broderick,  4  E.  D.  Smith,  721  ;  Noycs  v.  Burton,  29  Barb. 


68o  mechanic's  lien. 


Art.  3.     Notice  of  Lien  and  Filing. 


63 1  ;  Ernst  V.  Reed,  49  Barb.  367 ;  Brown  v.  Zeiss,  9  Daly,  242 ; 
Munger  v.  Curtis,  42  Hun,  465  ;  Livingsto)i  v.  Mildrum,  19  N.  Y. 
440;  Payne  v.  Wilson,  74  N.  Y.  348. 

Where  machinery  was  furnished  to  a  brewery  and  the  alteration 
thereof  on  the  31st  of  May,  but  the  plaintiff  was  engaged  until 
the  2 1st  of  June  in  placing  it  in  position,  it  was  held  that  a  notice 
of  Hen  filed  on  the  17th  of  September  was  in  time  and  effectual 
to  perfect  the  lien.  Watts-Campbell  Company  v.  Yne^igli^ig,  125 
N.  Y.  I,  34  St.  Rep.  255,  affirming  51  Hun,  302,  21  St.  Rep.  186, 
3  Supp.  869. 

The  lien  must  be  filed  within  the  time  limited  by  statute  or  it 
is  absolutely  void,  and  this  time  cannot  be  extended  by  tacking 
one  lien  upon  another.  Lutz  v.  Ey,  2  E.  D.  Smith,  621  ;  Hiibbell 
V.  Schreyer,  14  Abb.  (N.  S.)  284;  Donaldson  v.  O'Connor,  i  E.  D. 
Smith,  695  ;  Spencer  v.  Barnett,  35  N.  Y.  94.  Where  a  lien  was 
filed  by  a  contractor  in  New  York  city  more  than  sixty  days  after 
the  completion  of  the  work,  though  the  architect's  certificate 
called  for  by  the  contract  had  not  been  given,  it  was  held  invalid. 
Fay  V.  Muhlker,  i  Misc.  321,  48  St.  Rep.  699,  20  Supp.  671. 
Same  rule  as  to  sub-contractors  and  lien  not  filed  within  ninety 
days.  McMahon  v.  Hodge,  2  Misc.  234,  50  St.  Rep.  758,  21 
Supp.  971. 

The  right  to  acquire  a  lien  is  a  purely  personal  one,  and  prior 
to  the  filing  of  the  notice  it  can  not  be  assigned,  but  where  the 
assignment  is  merely  nominal  the  assignee  may  claim  for  the 
benefit  of  the  real  owner.  Rollin  v.  Cross,  45  N.  Y.  766;  Halla- 
han  V.  Herbert,  57  N.  Y.  409.  The  fact  that  the  notice  of  lien 
stated  that  both  defendants,  husband  and  wife,  owned  the  prop- 
erty when,  in  fact,  it  was  owned  by  one  of  them  only,  was  held 
not  to  impair  the  validity  of  the  lien.  Dennis  v.  Walsh,  41  St. 
Rep.  103,  16  Supp.  257. 

A  notice  of  lien  need  not  state  that  the  lien  is  a  claim  against  the 
persons  named ;  if  the  names  are  given  and  the  facts  subjecting 
their  notice  to  the  lien  are  stated,  the  statute  is  satisfied.  Ross  v. 
Simon,  30  St.  Rep.  545,  9  Supp.  536,  reversing  8  Supp.  2,  28  St. 
Rep.  147.  A  description  of  the  property  to  be  affected  is  suffi- 
cient if  it  can  be  thereby  located  and  identified,  and  a  mistake  as 
to  the  name  of  the  owner  of  the  property  does  not  invalidate  the 
lien.      WalkajH  v.  Henry,  7  Misc.  532,  27  Supp.  997. 

An  error  in  the  notice,  through  inadvertence  or  uncertainty  as 


mechanic's  lien.  68 1 


Art.  3.     Notice  of  Lien  and  Filing. 


to  ownership  in  naming  the  wrong  person  as  owner,  does  not 
impair  the  validity  of  the  Hen.  Hankinson  v.  Riker,  10  Misc. 
185,  62  St.  Rep.  484,  30  Supp.  1040.  An  error  in  the  statement 
of  the  name  of  the  owner  does  not  vitiate  the  hen.  Berry  v. 
Gavin,  88  Hun,  i,  34  Supp.  505,  68  St.  Rep.  288. 

The  provision  of  the  statute  that  the  failure  to  state  the  name 
of  the  true  owner  shall  not  impair  the  validity  of  the  lien,  renders 
an  omission  of  the  name  immaterial  where  the  name  of  the 
reputed  owner  appears.  Spruck  v.  McRobcrts,  19  Supp.  128,  45 
St.  Rep.  624.  If  the  owner's  name  appears  anywhere  in  the 
notice  of  lien,  it  will  be  sufficient ;  although  the  claim  is  inadvert- 
ently made  against  another  person.  Moran  v.  Chase,  52  N.  Y. 
347.  Where  there  has  been  a  change  of  ownership  during  the 
progress  of  the  work,  the  person  in  whom  the  fee  is  vested  at  the 
time  of  the  filing  of  the  notice  is  the  proper  person  again.st  whom 
the  claim  should  be  made.  Tiley  v.  Thousand  Islands  Hotel,  9 
Hun,  424. 

A  statement  that  the  sum  claimed  is  the  price  of  the  work 
when,  in  fact,  it  was  of  greater  value,  and  the  sum  claimed  is  the 
balance  unpaid,  is  not  conclusive  where  the  owner  had  knowledge 
of  the  particulars  of  the  claim  and  could  not  be  misled  by  the  error. 
Bryson  v.  St.  Helen,  79  Hun,  167,  61  St.  Rep.  390,  29  Supp.  524. 
Where  a  plaintiff  intentionally  filed  claim  for  more  than  double 
the  .sum  due  him,  it  was  held  he  was  not  entitled  to  a  lien  for  the 
materials  actually  furnished  and  used.  Goodrich  v.  Gillies,  66 
Hun,  422,  50  St.  Rep.  142,  21  Supp.  400,  but  an  error  in  the 
amount  due  in  the  notice  of  lien,  if  made  without  fraudulent 
intent,  will  not  invalidate  the  lien.  Goodrich  v.  Gillies,  '8,2  Hun, 
18,  63  St.  Rep.  318. 

A  contractor  can  file  a  valid  lien  for  the  whole  contract  price 
before  all  the  work  is  done  or  all  the  materials  furnished  provided 
the  balance  of  the  contract  is  thereafter  fully  completed.  //</;/- 
lein  V.  Mnrphy,  3  Misc.  47,  51  St.  Rep.  435.  22  Supp.  713.  The 
amount  for  which  the  lien  is  claimed  should  be  set  out  so  that 
the  balance  may  be  clearly  arrived  at.  Protective  Union  v.  Nix, 
I  E.  D.  Smith,  71  ;  Dwmingv.  Clark,  2  E.  D.  Smith.  535;  /,;//.:: 
v.Ey,2  E.  D.  Smith,  621  ;  Fogarty  v.  Wick,^  Daly,  166;  Die- 
gan  V.  Brophy,  55  How.  121. 

A  notice  that  plaintiff  had  a  claim  against  a  contractor  for  a 
certain  amount  on  account  of  work  done  and  materials  furni.shed, 


682  mechanic's  lien. 


Art.  3.     Notice  of  Lien  and  Filing. 


that  he  was  the  possessor  of  the  premises  under  the  contract 
with  defendant,  who  was  the  owner  thereof,  subject  to  said  con- 
tract, was  held  sufficient.  Kealcy  \.  Murray,  15  Supp.  403.  A 
description  of  the  premises,  suf^ciently  definite  to  identify  the 
property,  is  absolutely  essential  to  the  validity  of  the  lien.  Don- 
nelly V.  Libby,  i  Sweeney,  259. 

Where  a  notice  of  lien  stated  the  claim  was  "for  work,  labor 
and  services  rendered  and  materials  furnished  in  the  erection, 
alteration  and  repairing  of  a  two-story  frame  dwelling,"  and 
stated  also  the  place  or  location  of  the  building,  it  was  held  that 
the  omission  to  state  "the  nature,  amount,"  etc.,  and  "whether 
all  the  work  has  actually  been  performed  or  furnished,  and  if  not, 
how  much,"  was  a  fatal  defect,  and  that  the  notice  was  not  a 
substantial  compliance  with  the  requirements  of  the  statute. 
Luscher  v.  Morris^  18  Abb.  N.  C.  6"].  Where  the  lien  was  filed 
to  cover  work  actually  done,  and  not  for  materials  to  be  furnished, 
it  was  that  a  notice  "that  all  the  work  and  materials  for 
which  the  claim  is  made  has  been  actually  perfoimed  or  fur- 
nished," was  sufficient  without  stating  the  part  performed  and 
that  not  performed.  Bulkley  v.  Kimball,  46  St.  Rep.  543,  19 
Supp.  672. 

A  mis-statement  in  the  notice  in  order  to  invalidate  it  must  be 
such  as  is  calculated  to  mislead  other  claimants,  and  a  notice  of 
lien  alleging  full  performance,  when  all  that  remained  for  him  to 
do  was  pointing  up  after  the  other  mechanics,  was  held  to  be  a 
completion  of  the  work.  Mull  v.  Jones,  45  St.  Rep.  643,  18 
Supp.  359.  But  where  the  whole  contract  has  not  been  performed 
the  notice  to  be  valid  must  state  that  fact  and  how  much  has  been 
actually  done.     Brandt  v.  Verdon,  44  St.  Rep.  885,  18  Supp.  119. 

A  false  statement  that  all  the  work  has  been  done  and  mate- 
rials furnished  pursuant  to  the  contract,  if  knowingly  made,  ren- 
ders the  lien  invalid  unless  the  misstatement  is  an  unimportant 
one.  Ringle  v.  Wallis  Iron  Works,  76  Hun,  449,  59  St.  Rep. 
177,  28  Supp.  107.  If  a  notice  falsely  states  that  all  the  work  and 
materials  have  been  performed  and  furnished,  the  lien  is  invalid, 
as  the  notice  might  be  misleading  to  subsequent  lienors  and  the 
public.      Close  v.  Clark,  30  St.  Rep.  671,  9  Supp.  538. 

The  law  requires  a  truthful  statement  from  the  creditor,  but 
where  an  error  is  unintentional  and  results  from  an  honest  mis- 
take, the  error  will  be  disregarded.      Gaskell  v.  Beard,  58  Hun, 


mechanic's  lien.  683 


Art.  3.     Notice  of  Lien  and  Filing. 


lOi,  II  Supp,  399,  33  St.  Rep.  852.  What  is  a  sufficient  notice 
is  discussed  in  Bulkley  v.  Kimball,  19  Supp.  672,  46  St.  Rep.  543, 
and  Foster  v.  Schneider,  50  Hun,  151,2  Supp.  875,  19  St.  Rep. 
449;  also  in  Brandt  v.  Verdon,  18  Supp.   119,  44  St.  Rep.  885. 

A  notice  of  lien  signed  and  verified,  but  not  filed,  does  not  con- 
.stitute  a  lien  and  when  assigned  confers  only  the  right  to  acquire 
a  lien.  English  v.  Lee,  63  Hun,  572,  45  St.  Rep.  462,  18  Supp. 
576.  The  law  does  not  require  notice  to  be  signed  or  subscribed 
by  the  lienor,  but  it  is  enough  if  his  name  appears  at  the  begin- 
ning of  the  paper.  An  affidavit  following  the  words  of  the  stat- 
ute in  the  verification  thereof  is  sufficient.  Moore  v.  McLaugh- 
lin, 66  Hun,  133,  48  St.  Rep.  879,  21  Supp.  55. 

Service  of  a  copy  of  the  notice  of  lien  is  sufficient.  Kelley  v. 
City  of  Syracuse,  10  Misc.  306,  63  St.  Rep.  534,  31  Supp.  283. 
It  is  not  necessary  to  the  validity  of  a  mechanic's  lien  that  notice 
should  be  served  upon  the  owner.  Pickett  v.  Gollncr,  26  St. 
Rep.  691,  7  Supp.  196.  The  provisions  as  to  service  of  notice  of 
lien  on  the  owner  or  other  person  in  interest  will  not  affect  the 
validity  of  the  lien.  The  object  of  the  service  of  notice  is  to 
prevent  payment  by  the  owner  after  filing  the  lien.  Kenney  \. 
Apgar,  93  N.  Y.  541.  The  effect  of  notice  to  the  owner  is  con- 
sidered in  Kelly  v.  Bloojningdale,  19  Supp.  126. 

Sub.  2.  Verification  of  Lien. 

Verification  in  the  language  of  the  statute  that  the  state- 
ments therein  contained  are  true  to  the  affiant's  knowledge  or 
information  and  belief,  is  sufficient  to  support  the  lion.  Boyd  w. 
Bassett,  16  Supp.  10,  40  St.  Rep.  658;  Schivartz  v.  Allen,  24  St. 
Rep.  912,  7  Supp.  5  ;  Moore  v.  McLaughli)i,  21  Supp.  55  ;  Staub- 
sandt  V.  Lcnnon,  3  Misc.  90.  A  notice  of  lien  signed  and  verified, 
but  not  filed,  does  not  constitute  a  lien,  and  when  assigned  con- 
fers only  the  right  to  acquire  a  lien.  English  v.  Sill.  18  Supp. 
576;  English  V.  Lee,  63    Hun,  572,  45  St.  Rep.  462. 

The  notice  of  claim  filed  must  be  verified,  and  unless  verified 
it  is  a  nullity,  and  after  it  has  been  filed  it  cannot  be  amended. 
Hallahan  v.  Herbert,  57  N.  Y.  409.  A  verification  that  "the 
statements  therein  contained  are  true  to  his  knowledge  or  infor- 
mation and  belief,"  is  proper  without  designating  what  particular 
statements  in  the  notice  are  sworn  to  upon  information  and  belief 
and   what   upon  knowledge.      Staubsandt  v.  Lennon,  3   Misc.  90, 


684 


MECHANIC  S   LIEN. 


Art.  4.     Priority  of  Liens  and  Rights  of  Sub-contractors. 

51  St.  Rep.  754,  22  Supp.  544.  Where  a  notice  of  Hen,  verified 
before  a  commissioner  for  New  York  in  another  State,  was  filed 
without  the  certificate  of  the  Secretary  of  State  as  to  the  commis- 
sioner's authority,  it  was  held  the  verification  was  defective  and 
the  notice  of  lien  a  nullity  as  such.  Cream  City  Furniture  Co.  v 
Sguier,  2  Misc.  438,  51  St.  Rep.  118,  21  Supp.  972. 

A  verification  in  form  "that  the  statements  in  the  foregoing 
notice  contained  are  true  to  his  knowledge,  information  and 
belief,"  held  sufficient.  Kealey  v.  Murray,  15  Supp.  403. 
Under  prior  statutes  it  was  held  that  a  verification  "to  the  best 
of  his  knowledge,"  was  insufficient.  Keogh  v.  Main,  50  Supr.  Ct. 
183.  So,  also,  a  verification  that  the  statements  were  "in  all 
respects  true  to  his  knowledge  and  belief,"  was  held  bad.  Grey 
V.  Vorhis,  8  Hun,  612. 

The  question  of  defective  verification  is  a  mere  irregularity  and 
cannot  be  raised  for  the  first  time  on  appeal.  Moore  v.  McLaugh- 
lin, 21  Supp.  55.  Failure  to  make  a  full  and  complete  verifica- 
tion of  the  notice  of  lien  is  but  an  irregularity  which  is  waived  by 
not  duly  objecting  to  it.  Boyd  v.  Bassett,  40  St.  Rep.  658,  16 
Supp.  10.  A  person  who  verifies  a  lien  stating  what  at  the  time 
he  believed  to  be  true,  is  not  prevented  from  enforcing  the  lien 
because  it  subsequently  appears  that  only  a  portion  of  the  work 
sworn  to  had  been  completed.  Ringle  v.  Wallis  Iron  Works,  4 
Misc.  15,  24  Supp.  757. 

ARTICLE    IV. 


Priority  of  Liens  and  Rights  of  Sub-contractors. 

§§  5,  20. 

§  5.  Priority  of  liens  ;  building  contracts. 

The  liens  provided  for  in  this  act  shall  be  preferred  as  prior  liens  to  any  con- 
veyance, judgment  or  other  claim  which  was  not  docketed  or  recorded  at  the 
time  of  filing  the  notice  of  lien  prescribed  in  the  fourth  section  of  this  act,  and 
prior  to  advances  made  upon  any  mortgage  on  the  premises  after  the  filing  of 
such  notice  of  lien,  and  prior  to  the  claim  of  any  creditor  who  has  not  furnished 
materials  or  performed  labor  upon  any  land,  or  towards  the  erection  or  improve- 
ment of  premises,  described  in  said  notice  of  lien  and  which  have  been  assigned 
by  the  owner,  lessee,  or  persons  in  possession  thereof,  by  a  general  assignment 
for  the  benefit  of  creditors,  within  thirty  days  before  the  filing  of  the  notice  of 
lien  provided  for  in  the  fourth  section  of  this  act. 

But  nothing  in  this  act  shall  affect  the  priority  of  the  amount  actually  owned 
on  a  mortgage  given  for  purchase-money. 


mechanic's  lien.  685 


Art.  4.     Priority  of  Liens  and  Rights  of  Sub-contractors. 


In  cases  in  which  the  owner  has  made  an  agreement  to  sell  and  convey  the 
premises  to  the  contractor  or  other  person,  such  owner  shall  be  deemed  to  be 
the  owner  within  the  intent  and  meaning  of  this  act,  until  the  deed  has  been 
actually  delivered  and  recorded  conveying  said  premises  pursuant  to  such 
agreement. 

§  20.  [Am'd,  Chap.  673,  Laws  of  1895. J  Sub-contractors  and  priority 
among  lien  holders. 

All  persons,  firms,  corporations  or  associations  entitled  to  liens  under  the  pro- 
visions of  this  act,  except  those  who  contracted  with  the  owner,  shall  be  deemed 
sub-contractors,  and  the  court  in  the  judgment  shall  direct  the  amount  due 
sub-contractors  and  workmen,  to  be  paid  out  of  the  proceeds  of  sales  in  their 
order  of  priority  as  herein  provided  before  any  part  of  such  proceeds  are  paid 
to  the  contractors.  In  case  of  several  buildings  erected,  altered  or  repaired,  or 
meadows,  swamps,  or  other  low  lands,  or  lands  under  water,  whether  being 
dredged,  filled  in,  graded  or  otherwise  improved,  under  one  contract,  and  of 
conflicting  liens,  each  lienor  shall  have  priority  upon  the  particular  building  or 
premises  where  his  labor  is  performed  or  his  material  used.  Persons  standing 
in  equal  degree  as  co-laborers  or  various  persons  furnishing  materials,  shall 
have  priority  according  to  the  date  of  filing  their  liens,  provided,  however,  that 
in  all  cases  workmen  or  laborers  working  for  daily  or  weekly  wages,  shall  have 
preference  over  employers  of  labor,  sub-contractors  or  contractors  without  refer- 
ence to  the  date  when  such  workmen  or  laborers  shall  have  filed  their  liens. 
Where  several  notices  of  liens  are  filed  for  the  same  demand,  as  in  case  of  a 
contractor  including  claims  for  workmen  to  whom  he  is  indebted,  and  the  liens 
by  the  workmen,  the  judgment  shall  provide  for  the  proper  payment  in  order  of 
priority  as  herein  provided,  so  that  under  the  liens  filed  double  payment  shall 
not  be  required  and  no  payments  voluntarily  made  upon  any  claim  which  has 
been  filed  as  a  lien,  shall  impair  the  lien  of  any  person  except  the  lien  of  the 
person  so  paid  to  the  amount  of  such  payment. 

The  filing  of  the  notice  originates  the  hen.  Before  the  Me- 
chanic'.s  Lien  Act  the  laborer  or  materialman  had  no  right  to  be 
paid  for  his  labor  or  material  out  of  a  sum  which  is  due  from  the 
owner  of  the  building  to  the  contractor  in  preference  to  others, 
but  stood  in  the  same  position  as  other  creditors.  He  may  now 
subject  the  debt  to  the  lien  in  his  favor  on  filing  the  notice  and 
taking  the  proceedings  prescribed  by  the  act,  but  if  before  this 
has  been  done  other  creditors  pursuing  the  usual  remedies  for  the 
collection  of  debts,  have  acquired  a  legal  or  equitable  right  to 
have  the  debt  applied  in  satisfaction  of  their  claims,  the  right  is 
not  overreached  by  a  lien  subsequently  filed  unless  priority  is 
given  by  the  express  provisions  of  the  act.  Section  5  gives  .such 
a  lienor  priority  over  any  conveyance  or  judgment  not  recorded 
or  docketed  at  the  time  of  the  filing  of  the  notice  and  over 
advances  subsequently  made  on   any  mortgage  on  the  premises. 


686.  mechanic's  lien. 


Art.  4.     Priority  of  Liens  and  Rights  of  Sub-contractors. 

and  over  the  claims  of  general  creditors  under  general  assignment 
for  the  benefit  of  creditors  made  within  thirty  days  before  the 
filing  of  the  notice  of  lien.  No  other  priorities  are  given  by  the 
act.  McCorkle  v.  Herrma^i,  wj  N.  Y.  297,  27  St.  Rep.  333, 
reversing  22  St.  Rep.  519,  5  Supp.  881. 

Until  the  materialman  files  his  lien  he  obtains  no  preference  to 
be  paid  out  of  a  sum  due  the  contractor  from  the  owner.  Ste- 
vens V.  Ogden,  130  N.  Y.  182.  A  mechanic's  lien  is  entitled  to 
priority  over  a  conveyance  acknowledged  in  another  State  before 
an  officer  not  authorized  by  the  laws  thereof  to  take  acknowledg- 
ments.    Lejnmcr  w.  Morison,  89  Hun,  277,  35  Supp.  273. 

A  mechanic's  lien  only  attaches  to  the  extent  of  the  interest  of 
the  owner  at  the  time  notice  of  lien  was  filed,  and  is  subsequent 
to  a  mortgage  executed  by  the  owner  and  recorded  prior  to  the 
filing  of  such  notice  although  after  completion  of  the  building  and 
acceptance  of  the  work.  Munger  v.  Curtis,  42  Hun,  465.  Same 
principle,  Bradley  v.  Stafford,  i  Supp.  138.  A  recorded  mort- 
gage to  secure  advances  was  held  prior  to  a  subsequently  filed 
mechanic's  lien  in  Stiiyvesant  v.  Browning,  33  Supr.  Ct.  203. 

A  mortgage  recorded  before  the  filing  of  a  lien  takes  priority 
over  the  lien,  and  this  is  so  although  the  mortgagor  agreed  to  pay 
the  claim  for  which  the  Hen  was  filed  out  of  the  loan  obtained 
from  the  mortgage.  Munger  v.  Curtis,  42  Hun,  465  ;  Stevens  v. 
Ogden,  130  N.  Y.  182;  Bradley  v.  Stafford,  i  Supp.  138. 

A  provision  that  no  payment  should  be  made  without  certifi- 
cate of  the  county  clerk  that  no  liens  have  been  filed  which  are 
unsatisfied  is  intended  for  the  protection  of  lienors  as  well  as  the 
owner,  and  an  assignee  of  the  contractor  takes  subject  to  the 
lienor's  rights  to  be  first  paid.  Bates  v.  Salt  Springs  Nat. 
Bank,  88  Hun,  236,  34  Supp.  598,  68  St.  Rep.  282.  The  inter- 
est of  an  assignee  of  a  lease  who  takes  his  assignment  in  good 
faith  and  for  value  before  a  Hen  is  filed,  is  not  subject  to  such  a 
lien.  Hajikijison  v.  Riker,  10  Misc.  185,  62  St.  Rep.  484,  30 
Supp.  1040. 

When  one  creditor  of  a  building  contractor  to  whom  the  inter- 
est of  the  latter  in  the  contract,  and  the  amount  due  and  to  be- 
come due  has  been  assigned,  assigns  his  interest  therein  to 
another  creditor  of  the  contractor,  such  assignment  is  effectual 
against  any  lien  thereafter  filed.  Hondorf  v.  Atwater,  75  Hun, 
369,  57  St.  Rep.  694,  27  Supp.  447. 


mechanic's  liex.  687 


Art.  4.     Priority  of  Liens  and  Rights  of  Sub-contractors. 


A  contractor  may  pay  his  creditors  out  of  the  money  due  him 
from  the  owner,  to  the  exclusion  of  the  materialmen  and  laborers 
who  have  not  filed  liens.  Stevens  v.  Ogden,  41  St.  Rep.  331, 
reversing  Stevens  v.  Rcyywlds,  27  St.  Rep.  497,  54  Hun,  419,  7 
Supp.  771.  In  Mahoney  v.  Me  Walters,  3  App.  Div.  248,  the 
authorities  relative  to  priority  of  liens  are  discussed  and  applied 
to  the  facts,  citing  Murphy  v.  Briggs,  89  N.  Y.  45  i  ;  McCorkle  v. 
Herrman,  wj  N.  Y.  297;  Stevens  v.  Ogden,  130  N.  Y.  182; 
Schafcr  v.  Riley,  50  N.  Y.  61. 

The  intention  of  the  statute  as  to  the  rights  of  the  sub-con- 
tractor was  that  he  should  be  subrogated  to  the  rights  of  the  con- 
tractor with  respect  to  the  funds  due  or  to  become  due  on  the 
contract  between  the  contractor  and  the  owner.  Hofgesang  v. 
Meyer,  2  Abb.  N.  C.  1 11  ;  Snyder  v.  Hobicn,  41  How.  232;  }Ier- 
bert  V,  Herbert,  57  How.  333;  McMillan  v.  Seneca  Lake  Grape 
and  Wine  Co.  5  Hun,  12.  The  latter  case  holds  that  while  the 
contract  remains  in  force  no  payment  made  to  the  contractor 
after  notice  of  lien  has  been  filed  by  a  sub-contractor  can  affect 
the  lien  thereof.  The  operation  of  the  lien  law  when  the  notice 
is  filed  by  a  sub-contractor  is  to  transfer  to  the  lienor  the  con- 
tractor's claim  against  the  owner  pro  tanto.  And,  therefore,  the 
claims  of  sub-contractors  are  subject  to  the  equities  which  exist 
between  parties  to  the  original  contract.  Morgan  v.  StevcJis,  6 
Abb.  N.  C.  356.  The  effect  of  the  statute  is  that  the  moneys 
due  to  the  contractor  constitute  a  fund  for  the  payment  of  the 
sub-contractors  and  can  only  be  diverted  from  such  purpose  by 
bona  fide  payments  made  by  the  owner  according  to  the  terms  of 
the  agreement.  Crane  \.  Gcnin,  60  N.  Y.  127;  Payn  v.  Wilson, 
74  N.  Y.  348;  Gibson  v.  Lcnane,  94  N.  Y.  183;  Post  v.  Campbell, 
83  N.  Y.  279.  This  being  the  case,  the  sub-contractor  has  a  right 
to  rely  upon  the  terms  of  the  contract.  Lunibard  v.  Syracuse, 
55  N.  Y.  491. 

The  burden  is  upon  the  sub-contractor  to  show  that  his  labor 
was  performed  and  materials  furnished  according  to  the  contract, 
and  further  that  moneys  are  due  from  the  owner  to  the  contractor 
in  accordance  with  the  terms  of  such  contract  or  were  earned 
under  the  contract.  Haswell  v.  Goodehild,  12  Wend.  373; 
Walker  v.  Payn,  2  E.  D.  Smith.  362. 

Where  a  sum  in  excess  of  a  sub-contractor's  lien  is  due  to  a 
corporation  upon  a  building  contract  completed  on  the  day  fol- 


688  mechanic's  lien. 


Art.  4.     Priority  of  Liens  and  Rights  of  Sub-contractors. 

lowing  its  voluntary  dissolution,  the  court  may  properly  direct 
the  receiver,  on  receipt  from  the  owner  of  a  sum  sufficient  to  pay 
the  lien  and  a  satisfaction  thereof,  to  pay  it  to  the  sub-contractor. 
Matter  of  Christie  Mfg.  Co.  15  Misc.  588,  36  N.  Y.  Supp.  923, 
72  St,  Rep.  350.  A  mortgage  given  by  the  owner  of  the  build- 
ing to  the  contractor's  wife  to  secure  the  payment  of  the  balance 
due  on  the  contract  is  fraudulent  as  to  the  sub-contractors  and 
materialmen  and  should  be  set  aside.  Mahoney  v.  MelVa/ters,  91 
Hun,  247,  36  N.  Y.  Supp.  149. 

The  sub-contractor  is  entitled  to  moneys  earned  if  it  be  shown 
that  at  the  time  of  the  filing  of  the  lien  a  sufficient  sum  to  pay 
his  claim  had  been  earned  under  the  contract  according  to  the 
price  agreed  upon.  Wright  w  Roberts,  43  Hun,  413;  Van  Clief 
v.  Van  Vechten,  130  N.  Y.  571.  But  where  at  the  time  of  the 
filing  of  the  lien  there  is  nothing  due  the  contractor  from  the 
owner,  and  before  any  further  sum  becomes  due  the  contractor 
abandons  it  and  there  is  no  provision  for  the  completion  of  the 
work  by  the  owner,  nothing  remains  unpaid  within  the  meaning 
of  the  Lien  Law,  so  as  to  make  the  notice  of  lien  effectual. 
Larki7i  v.  McMiillin,  120  N.  Y.  206,  distinguishing  Hackett  v. 
Badean,  63  N.  Y.  476;  Rollin  v.  Cross,  45  N.  Y.  766;  Murphy  v. 
Buckman,66  N.  Y.  297;  Graf  v.  Self,  109  N.  Y.  369;  Wright 
V.  Roberts,  43  Hun,  413;  Vaii  Clief  v.  Van  Vechten,  48  Hun, 
304,  and  questioning  and  distinguishing  Sheffield  v.  Loeffiler,  20 
St.  Rep.  890.  FrencJi  v.  Bauer,  134  N.  Y.  548,  holds  that  one 
who  has  furnished  materials  for  the  sub-contractor  cannot  acquire 
a  lien  against  the  owner  after  the  latter  has  in  good  faith  paid  the 
contractor  and  the  contractor  has  paid  the  sub-contractor  in  full 
for  the  work  done  according  to  its  terms,  even  though  the  owner 
thereafter  becomes  indebted  to  the  contractor  upon  the  contract 
for  the  whole  work  to  an  amount  sufficient  to  satisfy  such  a  de- 
mand. The  owner  cannot,  except  in  cases  of  fraud  or  collusion, 
be  compelled  to  pay  any  greater  sums  for  the  completion  of  his 
building  than  that  which  by  his  contract  he  has  agreed  to  pay, 
and  this  is  true  of  a  contractor  who  has  in  his  turn  paid  the  sub- 
contractor the  amount  due  him  after  the  same  has  become  due 
and  payable. 

The  rule  governing  this  class  of  cases  is  laid  down  in  Van  Clief 
V.  Van  Vechten,  130  N.  Y.  571,  opinion  Vann,  J.,  to  be  that  a  lien 
attaches  if  anything  is  due  the  contractor  pursuant  to  the  terms 


mechanic's  lien.  689 


Art.  4.     Priority  of  Liens  and  Rights  of  Sub-contractors. 

of  the  contract  when  the  Hen  is  filed,  or  if  a  sum  subsequently 
becomes  due  thereunder  the  lien  attaches  to  the  extent  of  that 
sum.  Again,  if  nothing  is  due  the  contractor  when  the  lien  is 
filed,  and  he  abandons  the  undertaking  without  just  cause,  but 
the  owner  completes  the  building  according  to  the  contract,  and 
under  a  provision  thereof  permitting  it,  the  lien  attaches  to  the 
extent  of  the  difference  between  the  cost  of  completion  and  the 
amount  unpaid  when  the  lien  was  filed,  citing  a  number  of 
authorities.  Followed  Campbell  v.  Coon,  149  N.  Y.  557.  Upon 
this  point  see  Heckmann  v.  Pinkncy,  81  N.  Y.  211. 

Money  which  becomes  due  a  sub-contractor  after  the  filing  of 
a  lien  by  one  furnishing  labor  and  supplying  him  with  materials, 
becomes  subject  to  the  lien  of  such  materialman.  There  is  no 
lien  upon  money  due  or  paid  under  a  building  contract  until  the 
filing  of  the  lien ;  when  money  due  him  comes  to  a  contractor 
before  the  filing  of  a  lien,  he  is  under  no  obligation  to  apply  it  to 
payment  of  sub-contractors.  Mack  v.  Collcran,  136  N.  Y.  617. 
Where  an  order  in  supplementary  proceedings  is  served  on  the 
contractor  before  liens  are  filed,  the  receiver  has  a  prior  lien  on 
the  funds  due.      McCorkle  v.  Hcrrinan,  117  N.  Y.  297. 

Sub-contractors  are  entitled  to  recover  from  the  owner  an 
amount  due  the  contractor  at  a  time  when  he  stopped  work 
because  of  his  improper  refusal  to  make  a  payment.  So  they  are 
entitled  to  a  balance  which  becomes  due  the  contractor  when  the 
owner  completed  the  building  for  a  less  sum  than  that  remaining 
unpaid  by  the  contract.     Graf  v.  Self,  109  N.  Y.  369 

An  order  on  a  fund  due  the  owner  amounts  in  law  to  an  assign- 
ment of  the  fund.  Such  an  order  upon  the  owner  of  a  building, 
given  by  a  contractor  to  the  sub-contractor  prior  to  the  filing  of 
any  lien,  was  held  to  be  superior  to  liens  subsequently  filed. 
Lauer  y.  Dunn,  115  N.  Y.  405,  affirming  52  Hun.  191.  23  St. 
Rep.  374,  5  Supp.  161.  A  payment  by  the  owner  or  party  in 
interest  of  an  order  drawn  by  the  contractor  for  a  valuable  con- 
sideration in  favor  of  a  third  person  is  entitled  to  protection 
against  a  lien  filed  by  a  sub-contractor,  when  made  in  good  faith 
and  before  notice  or  knowledge  of  such  lien,  although  the  lien 
was  filed  at  the  time  of  such  payment.  Newman  v.  Levy,  84 
Hun,  478,  32  Supp.  557-  65  St.  Rep.  686.  As  the  statute  is 
remedial  and  was  designed  within  safe  limits  to  enable  the  laborer 
who  had  not  been  j^aid  by  his  immediate  employer,  to  resort  to 
[Special  Actions  —  44-] 


690  mechanic's  lien. 

Art.  5.     Payment  in  Advance  and  Demand  upon  Owner  for  Terms  of  Contract. 

the  contract,  the  term  "contractor"   includes    a  sub-contractor. 
Kent  V.  New  York  Central  &  H.  R.  R.  Co.  12^.  Y.  628. 


ARTICLE    V. 

Payments   in  Advance  and   Demand   Upon  Owner  for 
Terms  of  Contract.     §§  2,  3. 

§  2.  [Amended  chap.  673,  L.  of  1895.]  Payment  by  collusion,  etc.  to  avoid 
liens. 

If  the  owner  or  such  person  in  interest  as  aforesaid,  of  any  house,  wharf,  pier, 
bulkhead,  bridge,  vault,  building  or  appurtenances,  piece,  parcel,  tract,  land 
under  water,  marsh,  swamp,  low  or  farm  land,  for  or  toward  the  construction, 
altering,  repairing  or  improvement  of  which,  labor  and  services  have  been  per- 
formed, or  materials  have  been  furnished  by  contract,  whether  oral  or  written, 
shall  for  the  purpose  of  avoiding  the  provisions  of  this  act  or  in  advance  of  the 
terms  of  any  contract,  pay  by  collusion  any  money  or  valuable  thing  on  such 
contract,  or  give  a  mortgage  or  make  any  other  lien  or  incumbrance  upon  said 
house,  wharf,  vault,  building  or  appurtenances,  lot,  premises,  piece,  parcel, 
tract,  meadow,  marsh,  swamp,  low,  parcel,  or  farm  of  land  upon  which  the  same 
may  stand  or  be  intended  to  stand,  or  said  improvement  shall  be  made,  and  the 
amount  still  due  or  to  become  due  to  the  contractor,  sub-contractor,  or  assignee 
after  such  payment  has  been  made,  shall  be  sufficient  to  satisfy  the  claims  made 
in  conformity  with  the  provisions  of  this  act,  the  owner  or  other  person  in 
interest  as  aforesaid  shall  be  liable  to  the  amount  that  would  have  been  unpaid 
to  said  contractor,  sub-contractor  or  assignee,  had  said  owner  or  other  person  in 
interest  made  no  such  payment  or  given  no  such  mortgage  or  effected  no  such 
lien  or  incumbrance,  at  the  time  of  filing  the  notice  of  lien  prescribed  in  the 
fourth  section  of  this  act,  in  the  same  manner  as  if  no  such  collusion,  payment, 
mortgage,  lien  or  incumbrance  had  been   made,  given  or  effected. 

§  3.  [Amended  chap.  673,  L.  of  1895. J  Parties  may  demand  terms  of 
contract. 

Any  person  or  persons,  firm  or  firms,  corporation  or  association,  performing 
any  labor  or  service,  or  furnishing  any  materials  for  any  of  the  purposes  speci- 
fied in  the  first  section  of  this  act,  to  or  for  any  person  other  than  the  owner, 
may  at  any  time  demand  of  such  owner  or  of  his  authorized  agent,  the  terms  of 
the  contract  or  agreement  by  which  said  house,  wharf,  pier,  bulkhead,  bridge, 
vault,  building,  meadow,  marsh,  swamp,  land  under  water,  or  other  low  lands, 
or  appurtenances  is  being  erected,  altered,  dredged,  filled  in,  graded  or  otherwise 
repaired  or  improvements  made  to  any  such  house,  building  or  building  lot, 
meadow,  marsh,  land  under  water,  or  other  low  lands,  and  the  amount  due  or 
unpaid  the  person  or  persons,  firm,  corporation  or  association  erecting,  altering, 
repairing,  dredging,  filling  in,  grading  or  improving  the  same;  and  if  such 
owner  or  his  said  agent  at  the  time  of  said  demand  shall  neglect  or  refuse  to  in- 
form the  person  making  such  demand  of  the  terms  of  the  contract  or  agreement 
under  which  the  same  are  being  erected,  altered,  repaired  or  made,  and  the 
amount  due  and  unpaid  upon  such  contract  or  agreement  therefor,  or  shall 
intentionally  and  knowingly  falsely  state  the  terms  of  said  contract  or  agreement, 


mechanic's  lien.  691 


Art.  6.     Discharge  of  Lien. 


or  the  amount  due  or  unpaid  thereon  ;  and  if  the  person,  persons,  firm,  firms, 
corporations  or  associations  furnishing  such  materials  or  performing  such  labor 
or  service,  shall  sustain  loss  by  reason  of  such  refusal  or  neglect  or  false  state- 
ment, the  said  owner  shall  be  liable  to  them  in  an  action  therefor  and  for 
the  return  unsatisfied  of  an  execution  against  the  party  to  whom  such  materials 
were  furnished  or  for  whom  such  labor  and  service  were  performed,  in  an  action 
for  the  collection  of  the  value  thereof,  shall  be  presumptive  proof  of  such  loss, 
and  the  person  or  persons,  firm  or  firms,  corporation  or  association  furnishing 
such  materials  or  performing  such  labor  and  service  or  making  such  improve- 
ment, shall,  by  filing  within  the  time  and  in  the  manner,  the  notice  of  lien 
prescribed  by  this  act,  have  a  lien  upon  the  house,  wharf,  vault,  pier,  bridge, 
bulkhead,  building  or  appurtenance,  and  upon  the  lot,  premises,  parcel,  piece, 
tract,  meadow,  marsh,  swamp,  land  under  water,  low  or  farm  of  land  upon 
which  the  same  may  stand  or  be  intended  to  stand,  or  improvement  is  made,  as 
in  this  act  provided,  for  all  the  materials  furnished  and  labor  and  service  per- 
formed after  such  neglect,  refusal  or  false  statement. 

It  is  said  by  Grover,  J.,  opinion  Lumbard  v.  Syractisc,  etc.,  R.  R. 
Co.  55  N.  Y.  491,  that  a  party  furnishing  materials  or  doing  work 
relying  on  the  lien  given  by  statute  for  security,  must  examine 
the  contract  with  the  owner,  for  it  is  only  to  the  extent  of  what 
is  due  or  to  become  due  upon  this  contract  that  the  lien  can 
attach.  If  he  furnishes  the  material  or  does  the  work  for  a  sub- 
contractor in  like  reliance,  he  should  not  only  examine  the  con- 
tract with  the  owner,  but  also  that  of  the  sub-contractor,  or  if  the 
sub-contractor  fails  to  perform  his  contract  so  that  nothing  be- 
comes payable  thereon,  or  is  paid  in  full  according  to  its  terms, 
in  case  of  performance,  there  can  be  no  lien  within  the  principle 
of  Carman  v,  Mclncrow,  13  N.  Y.  70. 

ARTICLE    VI. 
Discharge  oy  Lien.    §  24. 

§  24.  Discharge  of  lien. 

A  lien  may  be  discharged  as  follows: 

1.  By  filing  a  certificate  of  the  claimant  or  his  successor  in  interest  duly  ac- 
knowledged or  proved  stating  that  the  lien  is  satisfied  and  may  be  discharged. 

2.  By  depositing  with  the  county  clerk,  if  before  the  suit,  of  a  sum  of  money 
equal  to  the  amount  claimed,  with  interest  to  the  time  of  such  deposit. 

3.  After  the  commencement  of  the  action,  by  the  deposit  with  the  clerk  of  the 
county  of  such  sum  of  money  as  in  the  judgment  of  the  court,  after  due  notice 
to  all  claimants  or  parties  to  the  action,  will  be  suflicient  to  pay  any  judgment 
which  may  be  recovered  against  the  property.  In  case  the  deposit  of  money  is 
made  with  the  county  clerk  as  provided  in  subdivisions  two  and  three  of  this 
section,  the  same  shall  be  repaid  by  said  clerk  to  the  party  making  such  deposit, 
or  his  assigns,  upon  the  lien  or  liens  being  discharged  by  the  claimants  who 
have  filed  a  notice  or  notices  of  lien  or  liens. 


692  mechanic's  lien. 


Art.  6.     Discharge  of  Lien. 


4.  By  the  lapse  of  time.  When  one  year  has  elapsed  from  the  time  of  filing 
notice  of  lien,  and  no  action  has  been  commenced  either  to  enforce  such  claim 
or  order  of  the  court  made  continuing  said  lien,  as  provided  in  section  six  of 
this  act. 

5.  By  order  of  the  court  for  neglect  of  the  claimant  to  prosecute  the  same,  as 
hereinafter  provided.  The  owner  of  the  property  or  of  any  part  thereof,  affected 
by  any  notice  of  lien  filed  under  this  act,  or  the  person  or  persons,  firms,  corpo- 
rations or  associations  against  whom  the  claim  is  made,  may  at  any  time,  after  the 
filing  of  the  notice  of  lien,  serve  a  notice  in  writing  upon  the  claimant  or  any  one 
of  several  claimants  united  in  interest,  or  by  leaving  such  notice  at  his  last 
known  place  of  residence,  with  some  person  of  suitable  age,  with  direction  to 
deliver  the  same,  requiring  said  claimant  to  commence  an  action  to  enforce  the 
claim  within  the  time  to  be  specified  in  the  notice,  which  shall  not  be  less  than 
thirty  days  from  the  time  of  such  service;  or  to  show  cause  at  a  special  term  of 
any  court  of  record  at  which  a  motion  might  be  made  in  an  action  to  enforce  the 
lien  or  at  a  county  court  of  the  county  in  which  the  property  is  situated,  at  a  time 
to  be  specified  in  such  notice,  why  the  notice  of  lien  filed  should  not  be  vacated 
and  cancelled  of  record.  Thereupon,  upon  due  proof  of  the  service  of  said  no- 
tice and  that  no  action  has  been  commenced  to  enforce  the  claim,  the  court  may 
make  an  order  that  the  claim  be  vacated  and  cancelled  of  record. 

6.  By  the  owner  of  the  premises,  person  or  persons,  firm  or  firms,  corporations 
or  associations  against  whom  or  which  the  notice  of  lien  is  filed,  executing  with 
two  or  more  sufficient  sureties,  who  shall  be  freeholders,  a  bond  to  the  clerk  of 
the  county  where  the  premises  are  situated,  in  such  sum  as  the  court  may  direct, 
not  less  than  the  amount  claimed  in  said  notice,  conditioned  for  the  payment  of 
any  judgment  which  may  be  rendered  against  the  property.  The  sureties  on 
said  bond  must  justify  in  at  least  double  the  sum  named  in  said  bond. 

A  copy  of  said  bond,  with  a  notice  that  the  sureties  will  justify  before  the 
court  or  a  judge  thereof  at  the  time  and  place  therein  named,  not  less  than  five 
days  thereafter,  must  be  served  on  the  claimant  or  his  attorney. 

Upon  the  approval  of  said  bond  by  the  court  or  a  judge  thereof,  an  order  dis- 
charging such  lien  may  be  made  by  the  court  or  a  judge  thereof. 

7.  All  moneys  paid  to  the  county  clerk,  as  hereinbefore  provided,  shall  be  con- 
sidered as  paid  into  court,  and  shall  be  subject  to  the  provisions  of  section  seven 
hundred  and  forty-five  of  the  Code  of  Civil  Procedure.  And  upon  such  payment 
the  county  clerk  shall  forthwith  enter  upon  the  "lien  docket,"  and  against  the 
lien  for  the  discharge  of  which  said  moneys  were  paid,  the  words  "discharged 
by  payment."  And  thereafter  the  provisions  of  section  seven  hundred  and  fifty- 
one  of  the  Code  of  Civil  Procedure  shall  apply  as  to  the  re-payment  or  surrender 
of  said  moneys.  Nothing  in  said  section,  however,  shall  prevent  any  court  of 
record  having  jurisdiction  of  the  parties  and  of  the  subject-matter  in  any  pro- 
ceeding commenced  to  foreclose  said  lien,  from  making  the  like  order  as  to  the 
surrender  or  payment  of  said  moneys.  (This  subdivision  was  added  to  section 
24  by  Laws  1893,  chap.  300.) 

The  fact  that  the  amount  of  a  bond  given  to  discharge  a  me- 
chanic's Hen,  was  fixed  by  the  court  and  the  sureties  approved 
after  justification,  may  be  inferred  from  an  approval  of  the  bond. 
An  objection  to  the  form  of  judgment  in  such  an  action  is  the 


mechanic's  lien.  693 


Art.  6.     Discharge  of  Lien. 


subject  of  a  motion  and  cannot  be  raised  for  the  first  time  on  ap- 
peal, where  action  is  brought  by  the  contractor  on  a  bond  given 
to  discharge  the  hen,  which  provided  for  the  payment  of  the  liens 
of  laborers  and  materialmen  from  the  recovery  awarded.  U Andri: 
V.  Zimmerman,  17  Misc.  357  ;  S.  C,  16  Misc.  357. 

A  deposit  of  the  money  to  discharge  a  lien  does  not  give  the 
claimant  a  right  to  receive  the  fund  so  deposited  until  he  estab- 
lishes his  lien.  Flynn  v.  Butler,  6\  How.  274;  Dunning  x.  Clark, 
2  E.  D.  Smith,  535.  The  court  has  no  power  to  discharge  a  lien 
except  in  the  manner  prescribed  by  statute.  Fcttrich  v.  Tottcn, 
2  Abb.  (N.  S.  )  264.  When  a  bond  has  been  filed  and  a  lien 
discharged,  before  the  commencement  of  the  action,  the  lienor 
must  make  the  sureties  parties  to  establish  valid  lien  which  would 
have  entitled  him  to  a  judgment  and  foreclosure  and  sale  if  no 
bond  had  been  filed.  Copley  v.  Hay,  12  Supp.  277;  Brandt  v. 
Radlcy,  23  Supp.  277. 

The  authorities  upon  the  question  as  to  whether  an  action 
at  law  can  be  maintained  upon  the  bond  without  first  resorting 
to  an  action  to  foreclose  the  lien  upon  the  property  are  collated 
and  discussed  in  Morton  v.  Tucker,  145  N.  Y.  244,  64  St.  Rep. 
685,  reversing  Morton  v.  O' Keefe,  10  :\Iisc.  538,  64  St.  Rep.  23, 
31  Supp.  446,  and  it  is  held  that  a  bond  given  under  the 
statute  takes  the  place  of  the  property  and  becomes  the  subject 
of  the  lien  the  same  as  moneys  paid  into  court  or  securities 
deposited  after  suit  brought  to  foreclose  the  lien  ;  that  the  remedy 
to  enforce  the  obligations  of  the  sureties  on  the  bond  is  not  by 
an  action  at  law  on  the  bond,  but  by  an  action  in  equity  in  which 
all  persons  interested,  including  the  sureties  on  the  bond,  are 
made  parties,  and  it  is  not  a  condition  precedent  to  the  bringing 
of  the  action  that  the  lienor  shall  exhaust  his  remedy  against  the 
land  owner  by  recovering  a  judgment  of  foreclosure  in  form 
against  the  property  described  in  the  notice  of  lien.  The  com- 
ptaint  should  be  in  the  usual  form  of  a  complaint  in  an  action  to 
foreclose  a  lien,  with  the  exceptions  that  it  should  allege  the  giv- 
ing of  the  bond  and  discharge  of  the  lien,  and  instead  of  asking 
judgment  for  the  sale  of  the  premises,  it  should  demand  rchef 
against  the  persons  executing  the  bond  for  the  amount  which 
shall  be  determined  to  be  payable  upon  the  lien. 

The  liability  of  the  sureties  on  a  bond  given  to  discharge  a  lien 
is  not  affected  by  a  substitution  in  the  action  of  foreclosure  of  a 


694  mechanic's  lien. 


Art.  7.     Construction  of  Statute  and  Repealing  Clause. 


person  other  than  his  principal  as  owner  of  the  land.  Miller  v. 
Youmans,  13  Misc.  59,  34  Supp.  140,  68  St.  Rep.  188.  Leave 
of  court  is  not  essential  to  the  prosecution  of  a  bond  given  to  dis- 
charge a  mechanic's  lien.  Reilly  v.  Pocrschke,  14  Misc.  466,  36 
N.  Y.  Supp.  nil.  A  clause  in  a  contract  that  before  receiving 
final  payment  the  contractor  .shall  furnish  proof  that  all  liens  and 
claims  for  work  under  the  contract  had  been  paid  and  been  satisfied, 
must  be  complied  with,  and  the  contractor  cannot   recover  until 

such  proof  has  been   furnished.     Fogg  v.  Suburban  Transit  Co., 
90  Hun,  274. 

ARTICLE    VIL 
Construction  of  Statute  and  Repealing  Clause. 

§§  25,  26. 

§  25.  Construction  of  statutes. 

This  act  is  hereby  declared  to  be  a  remedial  statute  and  is  to  be  construed 
liberally  to  secure  the  beneficial  interests  and  purposes  thereof ;  and  a  substan- 
tial compliance  with  its  several  provisions  shall  be  sufficient  for  the  validity  of 
the  lien  or  liens  hereinbefore  provided  for,  and  to  give  jurisdiction  to  the  courts 
to  enforce  the  same. 

§  26.  Repealing  clause. 

Chapter  one  hundred  and  eighty-four  of  the  Laws  of  eighteen  hundred  and 
forty-six,  chapter  one  hundred  and  sixty-nine  of  the  Laws  of  eighteen  hundred 
and  fifty-one,  chapter  three  hundred  and  eighty-four  of  the  Laws  of  eighteen 
hundred  and  fifty-two,  chapter  four  hundred  and  two  of  the  Laws  of  eighteen 
hundred  and  fifty-four,  chapter  six  hundred  and  sixty-three  of  the  Laws  of 
eighteen  hundred  and  fifty-seven,  chapter  four  hundred  and  seventy-eight  of 
the  Laws  of  eighteen  hundred  and  sixty-two,  chapter  five  hundred  of  the  Laws 
of  eighteen  hundred  and  sixty-three,  chapter  three  hundred  and  sixty-six  of  the 
Laws  of  eighteen  hundred  and  sixty-four,  chapter  seven  hundred  and  seventy- 
eight  of  the  Laws  of  eighteen  hundred  and  sixty-five,  chapter  five  hundred  and 
fifty-eight  of  the  Laws  of  eighteen  hundred  and  sixty-nine,  chapter  one  hun- 
dred and  ninety-four  of  the  Laws  of  eighteen  hundred  and  seventy,  chapter 
four  hundred  and  eighty-nine  of  the  Laws  of  eighteen  hundred  and  seventy- 
three,  chapter  five  hundred  and  fifty-one  of  the  Laws  of  eighteen  hundred  and 
seventy-four,  chapter  three  hundred  and  seventy-nine  of  the  Laws  of  eighteen 
hundred  and  seventy-five,  chapters  one  hundred  and  forty-three  and  four  hun- 
dred and  eighty-six  of  the  Laws  of  eighteen  hundred  and  eighty,  sections 
eighteen  hundred  and  seven  to  eighteen  hundred  and  twenty-three,  inclusive  of 
chapter  four  hundred  and  ten  of  the  Laws  of  eighteen  hundred  and  eighty-two, 
secti(?ns  eleven  to  twenty-seven,  inclusive  of  chapter  two  hundred  and  seventy- 
six  of  the  Laws  of  eighteen  hundred  and  eighty-three,  and  all  acts  amendatory 
of  the  above-mentioned  acts  or  extending  the  provisions  thereof,  are  hereby 
repealed. 

But  this  act  shall  not  be  so  construed  as  to  affect,  enlarge,  invalidate  or  defeat 
any  lien  or  right  to  a  lien  now  existing,  or  any  proceeding  to  enforce  such  lien 


mechanic's  lien.  695 

Art.  8.     Foreclosure  of  Liens. 


now  pending  by  virtue  of  any  of  the  provisions  of  the  acts  hereby  repealed,  nor 
to  revive  any  other  or  former  acts  or  parts  of  acts  repealed  by  the  acts  hereby 
repealed. 

ARTICLE   VIII. 
Foreclosure  of  Liens.     §§  6-19,  21,  22,  23. 

Sub.  I.  When  the  action  lies.     §  7. 

2.  Limitation  and  continuance  of  lien,  lis  pendens.    §  G. 

3.  Parties.     §  17. 

4.  Pleadings. 

5.  Practice.     §§  8,  14,  18,  19,  21,  22. 

6.  Judgment.     §§  15,  16,  23. 

7.  Foreclosure  in  courts  not  of  record.    §§  9-13. 

Sub.  I.  When  the  Action  Lies.     §  7. 
§  7.  Action  to  enforce  lien. 

Any  claimant  who  has  filed  the  notice  of  lien  mentioned  in  the  fourth  section 
of  this  act  may  enforce  its  claim  against  the  property  therein  mentiuncd,  and 
against  the  person  or  persons,  firm  or  firms,  corporation  or  association,  liable 
for  the  debt  by  a  civil  action  in  a  court  of  record  in  the  city  or  county  where  the 
property  is  situated,  which  would  have  jurisdiction  to  render  a  judgment  in  an 
action  founded  upon  a  contract,  for  a  sum  equal  to  the  amount  of  the  lien. 

As  the  remedy  requires  judgment  for  a  sale  of  specific  property, 
it  has  the  characteristics  of  a  bill  in  equity.  Kcnncy  v.  Apgar, 
93  N.  Y.  539;  Davis  v.  Alvorci,  94  U.  S.  545.  Section  8  of  the 
Act.,  see  Art.  VIII,  Sub.  5,  provides  that  the  form  of  proced- 
ure shall  be  the  same  as  on  foreclosure  of  a  mortgage.  I^iggs  v. 
Shannon,  27  Abb.  N.  C.  456,  44  St.  Rep.  365,  21  Civ.  Pro.  R. 
434,  16  Supp.  939.  The  County  Court  has  jurisdiction,  w  itliin 
the  general  limitation  as  to  amount  in  an  action  to  foreclose  a 
mechanic's  lien,  where  the  property  is  situated  in  the  county, 
although  the  defendant  does  not  reside  therein.  Raicn  v.  Smith, 
148  N.  Y.  415,  affirming  ^6  Hun,  60. 

An  action  to  foreclose  a  mechanic's  lien  is  an  action  /;/  rnn; 
it  is  in  the  nature  of  a  foreclosure  proceeding.  Mnrrytitt  v. 
Riley,  2  Abb.  N.  C.  119:  Tookcrv.  RinaUio,  \\  Hun,  154.  It  is 
held,  however,  in  Maddcti  v.  Jenny,  Daily  Reg.  December  12, 
1883  (Abb.  Dig.  vol.  10,  p.  156,  sub.  68)  that  the  .statutory  pro- 
visions assimilating  proceedings  to  foreclose  a  mechanic's  lien  to 
those  for  the  foreclosure  of  a  mortgage  will  not  make  the  provi- 
sions of  §  1678  of  the  Code  applicable. 


696  -  mechanic's  lien. 

Art.  8.     Foreclosure  of  Liens. 

Where  the  court  in  which  an  action  to  foreclose  a  mechanic's 
hen  is  brought  is  a  court  of  general  jurisdiction,  it  acquires  juris- 
diction to  determine  all  the  questions  as  to  all  the  liens  by  the 
proceedings  taken,  and  all  liens  can  be  foreclosed  therein.  An 
answer  is  not  essential  to  the  adjudication  on  the  claim  of  lienor 
made  a  party  defendant.  Hardwick  v.  Royal  Food  Co.  78  Hun, 
52,  60  St.  Rep.  490,  28  Supp.  1086. 

The  action  to  foreclose  cannot  be  commenced  until  the  money 
claimed  under  the  contract  is  due.  Preiisser  v.  Florence,  4  Abb. 
N.  C.  136;  Sullivan  v.  Brewster,  i  E.  D.  Smith,  681.  The 
lienor  can  begin  his  foreclosure  as  soon  as  anything  is  due  and 
can  recover  all  that  becomes  due  up  to  the  time  of  trial.  Ringlc 
V.  Wallis  Iron  Works,  85  Hun,  279,  66  St.  Rep.  494,  32  Supp. 
ion. 

Where  the  delivery  of  a  deed  is  postponed  and  the  mortgagor 
is  permitted  to  remain  in  possession  after  a  sale  on  foreclosure  to 
enable  him  to  complete  a  building  in  course  of  erection,  and  he 
does  so  and  pays  the  contractor  in  good  faith,  a  materialman 
cannot  enforce  his  lien  for  materials  furnished  after  the  sale 
against  the  purchaser,  where  his  notice  of  lien  was  not  filed  until 
after  such  payment  to  the  contractor  had  been  made.  Robbins  v. 
Arendt,  148  N.  Y.  673,  43  N.  E.  Rep.  165,  modifying  4  Misc. 
196,  23  N.  Y.  Supp.  1019,  53  St.  Rep.  483. 

Any  lienor  may  commence  his  separate  action  subject  to  the 
right  of  a  party  to  move  to  consolidate  actions,  and  where  a 
plaintiff  who  sued  to  foreclose  a  mechanic's  lien  was  named  as  a 
party  to  a  former  action  to  foreclose  another  Hen,  but  had  not 
been  served  with  process  in  that  action,  it  was  held  that  until  such 
service  the  former  suit  was  not  pending  as  to  him,  and  a  plea  to 
that  effect  was  unavailing.  Burton  Co.  v.  Cozvan,  80  Hun,  392, 
30  Supp.  317,  citing  Warner  v.  Warner,  57  St.  Rep.  764,  holding 
that  where  a  defendant  in  an  action  for  partition  had  not  been 
served,  its  pendency  was  no  ground  for  the  abatement  of  a  subse- 
quent action  brought  for  the  same  purpose  by  such  defendant. 
Citing  Haynes  v.  Onderdonk,  5  T.  &  C.  176;  Boylston  v.  Wheeler, 
5  T.  &  C.  179. 

The  undisclosed  principal  of  one  who  agreed  to  repair  a  build- 
ing may  maintain  an  action  to  enforce  a  lien  for  the  work,  but 
any  defences  arising  out  of  the  agent's  apparent  relation  to  the 
contract  and  work  are  available  in  such  action.     Berry  v.  Gavin^ 


mechanic's  lien.  697 

Art.  8.     Foreclosure  of  Liens. 

88  Hun,  I,  34  Supp.  505,  68  St.  Rep.  288.     The  pendency  of  an 
action  on  the  claim  is  no  bar  to  a  suit  to  foreclose  a  mechanic's 
lien.     Raven  v.  Smith,  ;  i  Hun,  197,  54  St.  Rep.  94,  24  Supp.  601. 
The  fact  that  a  money  judgment  has  been   recovered  upon  a 
claim  secured   by  a  mechanic's  lien  is  not  a  bar  to  the  action  to 
foreclose  the   lien   unless  pleaded  as  such.      Bryson  v.  St.  Helen, 
79  Hun,    167,  61    St.  Rep.    390,  29  Supp.  524.     A  foreign  stock 
corporation  doing  business  in  this  State  prior  to  the  passage  of 
chapter  687,  Laws  of  1892,  cannot  maintain  an  action  to  foreclose 
a  lien  where  the  certificate  required  by  that  act  was  not  procured 
until   after  the  work  was  performed.     Neuchatel  Asphalte  Co.  v. 
The  Mayor,  9  Misc.  376,  61  St.  Rep.  481,  30  Supp.  252. 
Sub.  2.   Limitation  and  Continuanck  of  Lien,  Lis  Pendens.  §  6. 
§  6.   [Am'd,  chap.  161,  Laws  of  1895.]     Continuance  of  lien.* 
No  lien  provided  for  in  this  act  shall  bind  the  property  therein  described,  for  a 
longer  period  than  one  year  after  the  notice  of  lien  has  been  filed,  unless  within 
that  time  an  action  is  commenced  to  enforce  the  same;  and  if  the  action  is  in  a 
court  of  record,  a  notice  of  the  pendency  of  such  action  is  filed  with  the  county 
clerk  of  the  county  in  which  such  notice  of  lien  is  filed,  containing  the  names  of 
the  parties  to  the  action,  the  object  of  the  action,  and  a  description  of  the  premises 
affected  thereby,  and  the  time  of  filing  the  notice  of  lien.     Or  unless  within  the 
year  from   the  time  that  the  lien  has  been  so  docketed,  an  order  be  made  by  a 
court  of  record   continuing  such  lien,  and  a  new  docket  be  made  stating  such 
fact.     In  such  case  the  lien  shall  be  continued  for  a  period  of  one  year  from  the 
making  of  such  order  and  no  longer,  but  a  new  order  and  new  docket  may  be 
made  in  each  successive  year.     And  when  a  claimant  is  made  a  party  defendant 
to  any  action  brought  to  enforce  any  other  lien,  such  action  shall  l)e  deemed  an 
action  to  enforce  the  lien  of  such  defendant,  who  is  a  claimant  within  the  pro- 
visions of  this  act.     The  neglect  to  file  the  notice  of  pendency,  provided  for  by 
this  act,  shall  not  abate  any  action   which  may  be  pending  to  enforce  the  lien. 
but  such  action  may  be  prosecuted  to  judgment  against  the  person  or  persons, 
firm  or  firms,  corporation  or  association  liable  for  the  debt. 

The  court  may,  in  its  discretion,  limit  the  continuance  of  the 
lien  in  the  order  or  vacate  or  refuse  it,  and  tlic  Hen  is  contnuied 
indefinitely  until  the  order  is  vacated  or  lien  disposed  of  if  no 
time  is  fixed  for  its  continuance.  Bigeloi^'  v.  Doying,  13  Supp. 
362.  (See  section  as  it  now  stands.)  The  lien  expires  by  limita- 
tion after  the  lapse  of  one  year  from  the  filing  of  the  notice  un- 
less suit  is  brought  and  a  lis  pendens  filed,  or  an  order  of  the  court 
made  extending  it.  Walsh  v.  Mayor,  19  Abb.  132.  Even  if  the 
action  has  been  tried,  the  lien   expires  in  case  no  lis  pendens  has 

been  filed.      Prior  v.  White,  32  Hun.   14. 

*See  55  2  of  chap.  161,  Laws  1S95. 


698  mechanic's  lien. 


Art.  8.     Foreclosure  of  Liens. 


In  Haag  v,  Hillcmeier,  41  Hun,  390 ;  Fox  v.  Kidd,  yy  N.  Y. 
489,  it  was  held  that  if  proper  proceedings  are  commenced  within 
the  year,  to  foreclose  the  lien,  it  continues  until  final  judgment. 
Under  the  present  statute  an  order  continuing  the  lien  is  not 
necessary'  where  judgment  of  foreclosure  is  obtained  within  one 
year  of  the  filing  of  the  notice.  Wright  v.  Roberts,  8  Supp.  745, 
affirmed  118  N.  Y.  672. 

The  holder  of  the  lien  during  its  continuance  has  the  option  to 
foreclose  or  obtain  an  order  continuing  the  lien,  and  the  right  to 
a  continuance  is  not  affected  by  the  fact  that  the  lienor  has 
resorted  to  an  action  at  law  on  the  claim,  since  the  right  to  fore- 
close the  lien  is  cumulative ;  it  is  not  necessary  to  commence  a 
separate  action  to  procure  the  continuance  of  the  lien,  and  the 
granting  of  the  continuance  is  within  the  discretion  of  the  court. 
Every  continuance  granted  is  limited  in  duration  to  one  year 
from  the  filing  of  the  new  docket.  Matter  of  Gotild  Coupler  Co. 
79  Hun,  206,  61  St.  Rep.  164,  29  Supp.  622. 

Notice  of  the  application  for  an  order  is  not  necessary  unless 
the  court  directs  it  to  be  given,  and  it  may  be  granted  by  any 
court  having  jurisdiction  to  foreclose.  Darrozv  v.  Morgan,  65 
N.  Y.  333.  The  order  cannot  be  made  after  the  expiration  of 
the  year  so  as  to  operate  nunc  pro  tunc.  PoerscJike  v.  Redenburg, 
6  Abb.  (N.  S.)  172.  In  computing  the  time  within  which  the 
order  can  be  made  the  day  on  which  the  notice  is  filed  is  to  be 
excluded.     Haden  v.  Buddensiek,  6  Daly,  8. 

The  granting  of  the  order  without  docketing  or  filing  it  is  not 
sufficient  to  preserve  the  lien.  Matthezvs  v.  Daly,  7  Abb. 
(N.  S.)  379.  The  action  is  seasonably  commenced  against  the 
defendant  where  the  summons  was  delivered  to  the  sheriff  within 
one  year  after  the  filing  of  notice  of  the  lien,  although  the  defend- 
ant was  not  served  until  after  the  expiration  of  the  year.  Ham- 
mond V.  Shepard,  3  Supp.  349. 

The  mere  fact  of  filing  a  notice  of  lis  pendens,  where  no  com- 
plaint in  the  action  is  filed,  does  not  create  a  lien  upon  the  land 
described  in  the  notice  of  lis  pendens.  Albro  v.  Blume,  5  App. 
Div.  309.  Lis  pendens  is  necessary  only  to  continue  the  lien 
in  force.  Where  the  lien  has  been  discharged  by  a  deposit  as 
prescribed  by  the  statute,  it  is  not  necessary  to  show  that  a  lis 
pendens  was  filed.  Ward  v.  Kilpatrick,  85  N.  Y.  413.  Where 
plaintiff  files  a  lis  pendevs  it  preserves  the  liens  of  defendants  as 


mechanic's  lien.  699 


Art.  S.     Foreclosure  of  Liens. 


if  each  lienor  had  filed  a  separate  notice.     McAllister  v.  Case,  5 
Supp.  918. 

The  filing  of  a  complaint  is  a  notice  of  pendency  of  the  action. 
Wright  V.  Roberts,  8  Supp.  745,  affirmed,  118  N.  Y.  672.  If  a 
lien  is  a  valid  and  subsisting  one  at  the  time  of  the  sale  of  the 
premises  under  a  decree  of  foreclosure,  it  need  not  be  continued 
by  an  order  of  the  court  to  enable  the  claimant  to  come  in  on  the 
proceeds  of  the  sale.  Emigrant  Industrial  Savings  Bank  v. 
Golden,  75  N.  Y.  127. 

Sub.   3.   Parties.     §  17. 

§  17.  Parties  to  action. 

Any  person  or  persons,  firm  or  firms,  corporation  or  association,  filing  a  notice 
of  lien,  or  the  assignee  of  such  person  or  persons,  firm  or  firms,  corporation  or 
association,  after  the  filing  thereof,  shall  be  the  plaintiff  in  such  action. 

The  plaintiff  must  make  the  parties  who  have  filed  notice  of  lien  against  the 
property,  as  well  as  those  who  have  subsequent  liens  and  claims  by  judgment, 
mortgage  or  conveyance,  parties  defendant. 

And  as  to  all  persons,  firms,  corporations  or  associations  against  whom  no 
personal  claim  is  made,  the  plaintiff  may  with  the  summons  serve  a  notice  stat- 
ing briefly  the  object  of  the  action,  and  that  no  personal  claim  is  made  against  it 

or  them. 

And  all  persons,  firms,  corporations  or  associations,  who  have  filed  notice  of 
liens  under  this  act,  shall  by  answer  in  such  action,  set  forth  same,  and  the 
court  in  which  the  action  is  brought  may  settle  and  determine  the  equities  of  all 
the  parties  thereto,  and  decide  as  to  the  extent,  justice  and  priority  of  the  claims 
of  all  parties  to  the  action  and  upon  every  counter-claim  or  set-oflf  alleged  therein, 
to  the  extent  of  their  respective  jurisdictions. 

The  provisions  in  this  section  in  regard  to  making  parties  who  have  filed  no- 
tices of  liens  against  the  property  as  well  as  those  who  have  subsequent  liens 
and  claims  by  judgment,  mortgage  or  conveyance,  parties  defendants,  shall  not 
apply  to  proceedings  to  enforce  liens  instituted  in  courts  not  of  record. 

The  act  in  prescribing  parties  to  a  foreclosure  proceeding  docs 
not  include  owner's  grantors  or  assignors  prior  to  the  filing  of  the 
lien,  and  though  their  conveyances  or  transfers  arc  not  recorded 
they  are  not  proper  parties  merely  because  of  that  relation  U^  the 
property.  Sonthard  v.  Moss,  2  Misc.  121,  49  St.  Rep.  225.20 
Supp.  848.  An  action  to  foreclose  a  Hlmi  by  a  contractor,  to 
which  a  materialman  is  not  a  party,  docs  not  bar  the  latter  from 
foreclosing  a  lien  filed  by  him.      Egan  v.  Laiininlc,  5  Misc.  224, 

54  St.  Rep.  789. 

The  contractor  is  a  proper  and  nccessaiy  party  to  an  action  by 
a  sub-contractor  to  foreclose  a  lien  which  is  based  upon  payments 
made  to  the  contractor  before  they  were  due,  although  the  owner 


700  mechanic's  lien. 

Art.  8.     Foreclosure  of  Liens 

admits  making  payments.  Hilton  Bridge  Construction  Co.  v.  Neiu 
York  Central  &  H.  R.  R.  Co.  145  N.  Y.  390,  40  N.  E.  Rep.  86, 
64  St.  Rep.  834,  modifying  84  Hun,  225,  33  Supp.  514,  65  St. 
Rep.  669.  But  a  person  to  whom  the  contractor  made  an  assign- 
ment before  the  liens  were  filed  of  all  moneys  due  and  to  grow 
due  under  the  second  payment,  should  not  be  brought  in  as  a 
necessary  party  where  the  referee  states  that  he  can  render  a 
complete  determination  of  the  controversy  without  the  presence 
of  any  parties  other  than  those  before  the  court.  Mulligan  v. 
Vreeland,  88  Hun,  183,  34  Supp.  990,  69  St.  Rep.  51. 

The  foreclosure  of  a  mechanic's  lien  is  an  equitable  proceed- 
ing; when  necessary  other  parties  than  those  named  in  the  notice 
may  be  brought  in.  Broivn  v.  Welch,  5  Hun,  582.  Where  after 
part  of  the  work  done  by  the  joint  contractors  has  been  finished 
and  paid  for,  the  contract  is  abandoned  and  one  of  the  joint  con- 
tractors by  a  new  arrangement  with  the  owner  completes  the  work, 
he  may  file  a  lien  therefor  in  his  own  name,  and  the  fact  that  he 
subsequently  takes  an  assignment  from  the  other  joint  contractors 
does  not  make  them  necessary  parties.  Hubbcll  \.  Schreyer,  15 
Abb.  (N.  S.)  300,  56  N.  Y.  604.  Persons  who  acquire  liens  other 
than  mechanic's  liens,  after  the  commencement  of  the  proceed- 
ings, need  not  be  made  parties.  Siiydavi  v.  Holden,  1 1  Abb. 
(N.  S.)  329,  note. 

Where  the  lien  names  one  person  as  contractor,  the  joinder  of 
another  as  a  party  in  a  suit  to  enforce  it  will  not  vitiate  the  lien, 
it  appearing  that  such  party  has  no  interest.     Broivn  v.  JVels/i, 

5  Hun,  582.  The  court  has  power  to  add  parties  if  their  presence 
is  necessary  to  enable  it  to  do  complete  justice.  Sullivan  v. 
Decker,  i  E.  D.  Smith,  699.  Where  a  subsequent  claimant  is 
made  a  party,  he  may  carry  on  the  suit  for  his  own  benefit 
although  the  original  plaintiff  allow  his  lien  to  expire.  Abraham 
V.  Boyd,  5  Daly,  321. 

Where  the  complaint  alleged  that  a  certain  third  party  had  re- 
ceived a  mortgage  of  the  premises  as  trustee,  the  latter  should 
have  been  made  a  party  defendant.      SJiillingcr  Fire  Proof  Cement 

6  Asphalte  Co.  v.  Arnott,  14  Supp.  326.  Where  plaintiff  sued 
defendant  to  foreclose  a  lien  and  it  appeared  that  defendant's 
wife  was  the  real  owner,  on  motion  by  plaintiff  to  substitute  the 
wife  as  a  defendant,  it  was  held  that  the  provision  that  a  lien 
should  not  be  invalid  because  of  a  mistake  in  the   name  of  the 


MECHANIC  S   LIEN.  /OI 


Art.  S.     Foreclosure  of  Liens 


owner  did  not  apply  and  that  plaintiff  must  bring  a  new  action. 
Spence  v.  Grisivold,  y  Supp.  145,  23  Abb.  N.  C.  239.  Holders  of 
an  equitable  assignment  of  the  lien  although  they  have  not  formally 
accepted  it,  are  necessary  and  proper  parties.  Williams  v.  Edison 
Illuminatins^  Co.  16  Supp.  857,  43  St.  Rep.  126. 

Sub.  4.   Pleadings. 

The  complaint  must  state  the   facts  which   are  essential  to  the 

acquisition   and  the  enforcement  of  the  lien.      Bailey  v.  Jo/mson, 

I    Daly,  61;  Foster  v.  Poillon,  2   E.  D.  Smith,  556;  Conkright  v. 

Thompson,  i  E.  D.  Smith,  661.     The  description  of  the  premises 

sought  to  be  charged  must  be  sufficient  to  identify  them.     Duffy 

V.  McMannis,  3  E.  D.  Smith,  357.     It  was  held  under  previous 

statutes  that   it   should   allege  the  interests  of  the  parties  in  the 

premises  described.      Jenks  v.  Parsons,   2   Hun,  667;  Mechan  v. 

Williams,  2  Daly,  367;  Bailey  v.  Johnson,  i  Daly,  61  ;  Alt  house  v. 

Warren,  2  E.  D.  Smith,  657. 

It  is  sufficient  to  allege  that  the  work  was  performed  and  mate- 
rials furnished  with  the  knowledge  and  consent  of  the  owner,  but 
the  fact  of  such  consent  when  relied  on  must  be  alleged  and 
proved.  Ross  v.  Simon,  9  Supp.  536,  reversing  8  Supp.  2; 
Riggs  V.  Chapin,  7  Supp.  765 ;  Biirkctt  v.  Harper,  79  N.  Y.  273. 
Performance  of  the  terms  of  the  contract,  if  any,  must  also  be 
alleged.  Dickson  v.  La  Fargc,  i  E.  D.  Smith,  722;  Quinn  v. 
The  Mayor,  2  E.  D.  Smith,  558;  Jacques  v.  Morris,  2  E.  D. 
Smith,  239;  Licgiic  v.  ScJiivartzcr,  10  Daly,  547;  Watrous  v. 
Rlmendorf,  55  How.  461. 

There  must  be  an  allegation  that  the  notice  of  lien  was  duly 
filed  and  properly  verified.  Schillinger  Fire  Proof  Co.  v.  Arnot, 
14  Supp.  326;  Conklin  v.  Wood,  3  E.  D.  Smith,  662;  Kctchlin  v. 
Stunne,  56  Supr.  337 ;  Bailey  v.  Johnson,  i  Daly,  67 ;  Duffy  v. 
McMannis,  3  E.  D.  Smith,  357.  A  date  in  a  schedule  annexed 
to  the  complaint  may  be  shown  to  have  been  a  clerical  error  in 
transcribing.      McMillan  v.  Seneca  Grape  cr  Wine  Co.  5  Hun,  12.* 

The  complaint  in  an  action  to  foreclose  sub-contractor's  lien  is 
not  insufficient  as  to  the  contractor  and  subsequent  lienors  be- 
cause it  does  not  particularly  state  the  terms  of  the  principal 
contract  and  the  exact  amount  due  the  contractor  at  the  com- 
mencement of  the  action.  Drcnnan  v.  The  Mayor,  14  Misc.  T12, 
35   Supp.    244,  69    St.    Rep.   619.     The  complaint  mu.st,   in   an 


702  MECHANIC  S    LIEN. 


Art.  8.     Foreclosure  of  Liens. 


action  where  judgment  has  been  recovered  upon  the  debt,  allege 
the  return  of  the  execution  unsatisfied.  Baring  v.  Kick,  25  Civ. 
Pro.  R.  62,  35  Supp.  676. 

Proper  allegations  may  be  made  to  set  aside  any  transfer  of 
property  which  has  been  made  in  fraud  of  the  rights  of  the  lienor 
for  the  purpose  of  defeating  the  lien.  Tisdalc  v.  Moore,  8  Hun, 
19;  Gross  V.  Daly,  5  Daly,  540 ;  Meehan  v.  Williajns,  36  How. 
73;  McAiiley  \.  Mildriim,  i  Daly,  396.  Where  it  appears  that 
the  action  is  for  materials  furnished  to  a  contractor,  and  there 
was  money  due  to  the  contractor  from  the  owner  when  the  lien 
Vv'as  filed,  defendants  may  show  the  contractor  has  not  completed 
his  work  and  the  cost  of  completion.  Frazier  v.  McGuckin,  9 
Supp.   435. 

Under  a  complaint  alleging  that  plaintiffs  furnished  all  the 
materials  to  the  building,  where  the  answer  is  a  general  denial, 
defendant  may  show  certain  materials  and  lumber  were  furnished 
by  her.  Close  v.  Clark,  9  Supp.  538.  If  the  complaint  sets  out 
a  complete  cause  of  action  for  work,  labor  and  services  and  mate- 
rials furnished,  irrespective  of  the  allegations  entitling  plaintiff  to 
foreclose  a  mechanic's  lien,  defendant  is  not  entitled  to  a  dis- 
missal merely  because  plaintiff  fails  to  prove  his  lien.  Snaith  v. 
Smith,  7  Misc.  n ,  27  Supp.  379,  57  St.  Rep.  86. 

An  action  to  establish  a  lien  by  a  materialman  cannot  be  sus- 
tained where  the  complaint  does  not  distinctly  allege  that  there 
was  a  contract  between  the  owners  and  alleged  contractors  or  that 
there  was  any  sum  unpaid  by  the  owners  thereon.  Raabe  v. 
Squicr,  148  N.  Y.  81,  42  N.  E.  Rep.  516,  reversing  5  Misc.  220, 
25  N.  Y.  Supp.  463,  54  St.  Rep  824.  An  allegation  in  the  com- 
plaint in  a  proceeding  to  foreclose  a  sub-contractor's  lien  that  a 
person  claims  to  be  an  assignee  of  the  contractor's  interest  in  any 
sum  found  to  be  due  to  him,  is  sufficient  to  show  that  such  per- 
son is  a  proper  party  defendant.  Hilton  Bridge  Construction  Co. 
V.  Gouverneiir  &  Ostvegatchic  R.  R.  Co.  90  Hun,  584,  35  N.  Y. 
Supp.  976,  70  St.  Rep.  149. 

Defendants  are  not  required  to  serve  their  answers  on  the 
owner  of  the  property  in  order  to  be  entitled  to  continue  the 
action  after  settlement  of  the  plaintiff's  claim.  Wilson  v.  Niagara 
City  Land  Co.  79  Hun,  162,  61  St.  Rep.  374,  29  Supp.  517. 
Power  of  the  court  to  amend  pleadings  is  the  same  as  under  the 
Code.     Gambling  v.  Haight,  58  N.  Y.  623.      In  an  action  to  fore- 


mechanic's  lien.  703 


Art.  S.     Foreclosure  of  Liens. 


close  a  lien,  where  the  complaint  contains  allegations  of  the 
fraudulent  conveyance  of  the  property  and  a  prayer  that  such 
conveyance  may  be  declared  void,  a  demurrer  will  not  lie  on  the 
ground  of  misjoinder  of  causes  of  action.  Tisdale  v.  Moore,  8 
Hun,   19. 

The  answer  may  set  up  counterclaim  as  between  the  contractor 
and  sub-contractor  and  as  between  the  owner  and  the  contractor. 
Hoyt  V.  Miner,  7  Hill,  525  ;  Miner  v.  Hop,  4  Hill,  193;  Ozvens  v. 
Eckcrson,  i  E.  D.  Smith,  691.  A  counterclaim  based  upon  false 
representations  cannot  be  interposed  in  an  action  to  foreclose  a  lien. 
Marshall  v.  Cohen,  11  Misc.  397,  32   Supp.  283,  65  St.  Rep.  310. 

Precedent  for  Complaint. 
COUNTY  COURT  — Rknsselaer  County. 


JOHN  W. PANGBURN 

agst. 

MARTIN  RYAN. 


The  above  named  plaintiff  complains  of  the  defendant  above  named, 
and  thus  complaining  alleges: 

That  the  plaintiff  and  the  defendant  are  both  residents  and  mhabit- 
ants  of  the  county  of  Rensselaer  and  State  of  New  York. 

That  prior  to  and  between  the  30th  day  of  November,  1892,  and 
the  i2th  day  of  December,  1892,  the  plaintiff,  at  the  request  of  the 
defendant,  rendered  services  to  him  as  a  mason  and  builder,  and,  on 
like  request,  furnished  materials  necessary  and  proper  in  and  about 
said  work,  labor  and  services.  That  said  work,  labor  and  materials 
were  reasonably  worth  the  sum  of  $286.88.  That  no  part  of  the 
same  has  been  paid  except  the  sum  of  $100,  paid  prior  to  Decem- 
ber i2th,  1892. 

That  the  said  plaintiff,  on  or  about  the  i8th  day  of  1-ebruary,  1893. 
filed  a  mechanic's  lien  against  certain  property  belonging  t(.  the  said 
defendant  in  the  county  of  Rensselaer,  which  property  was  described 
in  said  lien  as  follows: 

(Insert  description.) 

That  on  or  about  the  2 2d  dav  of  February,  1893,  a  copy  of  said 
lien  with  a  notice  of  the  filing  thereof,  was  duly  served  upon  the 
said'  defendant.  That  no  part  of  said  bill  has  been  paid  and  that 
said  lien  remains  unpaid  and  unsatisfied.  That  said  services  were 
performed  and  said  materials  were  furnished  to  altt-r  and  improve  a 
building  upon  the  parcel  of  land  above  described,  which  was  at  the 
time  of  the  rendering  of  such  service,  and  at  the  present  time  owned 
by  the  defendant  in  fee.  Wherefore,  the  plaintiff  demands  judg- 
ment,   that   the   premises  above  described  be  sold  by  or  under  the 


yoA  mechanic's  lien. 


Art.  8.     Foreclosure  of  Liens. 


direction  of  a  referee  to  be  appointed  by  the  court  or  by  the  sheriff 
of  the  county  of  Rensselaer;  and  that  out  of  the  moneys  arising  from 
such  sale  the  plaintiff  may  be  paid  the  amount  due  on  said  lien,  with 
the  costs  and  expenses  of  this  proceeding  so  far  as  the  amount  of  the 
proceeds  will  pay  the  same;  and  that  the  defendant,  Martin  Ryan, 
may  be  adjudged  to  pay  any  deficiency  which  may  remain,  after 
applying  all  the  proceeds  of  such  sale  so  applicable  thereto;  and 
that  the  plaintiff  may  have  such  other  or  further  order  or  relief  as 
may  be  proper. 

MARCUS  T.   HUN, 
Attorney  for  Plaintiff. 

Precedent  for  Complaint. 

COUNTY  COURT  — OF  the  County  of  Richmond. 


John  H.  Van  Clief  and  William  S.  Van  Clief 

agsf. 

George  L.  Smalle,  Hanna  R.  Van  Vechten,  Ehvood   -    130  N.  Y.  571. 
H.    Newman,    Clark    A.    Newman,     Karl     Feist, 
agents,  Abram   B.  Mersereau,  George  Mesereau, 
Vernon  R.  Gregg. 

The  complaint  of  the  above-named  plaintiffs  respectfully  shows  to 
this  court: 

For  a  cause  of  action  these  plaintiffs  allege: 

1.  That  the  plaintiffs  herein  named  were  at  the  times  hereinafter 
stated,  and  now  are,  partners  in  business  under  the  firm  name  of 
John  H.  Van  Clief  &  Son. 

2.  That  plaintiffs  are  informed  and  believe  that  heretofore  the 
defendant  Smalle  made  and  entered  into  a  contract  with  the  defend- 
ant Hanna  R.  Van  Vechten,  the  owner  of  the  premises  hereinafter 
described,  whereby  the  defendant  Smalle  was  to  erect  a  dwelling 
house  in  the  village  of  Brighton,  county  of  Richmond  and  State  of 
New  York  upon  a  lot  of  land  situated  and  described  as  follows:  (In- 
sert description.) 

3.  That  said  defendant  Smalle  thereafter  entered  upon  the  per- 
formance of  said  contract  and  commenced  the  erection  of  said  dwel- 
ling house  under  said  contract. 

4.  That  the  plaintiffs,  between  the  nth  day  of  May,  1886,  and 
July  31,  1886,  sold,  delivered  and  furnished  to  the  defendant  Smalle 
at  his  request,  goods  and  merchandise,  consisting  ,of  building 
materials  of  the  value  and  at  the  agreed  price  of  $1,264.35. 

5.  That  said  building  materials  were  furnished  by  these  plaintiffs 
to  defendant  Smalle  for  the  purpose  of  using  in  the  erection  and 
construction  of  said  building,  and  were  used  by  the  defendant  Smalle 
in  and  towards  the  erection  and  construction  of  said  buildings  and 
in  the  performance  of  the  contract  made  between  defendant  Smalle 
and  Van  Vechten  aforesaid. 


mechanic's  lien.  705 


Art.  8.     Foreclosure  of  Liens. 


6,  That  the  said  sum  of  $1,264.35  has  not  j-et  been  paid  nor  anv  part 
thereof,  and  there  is  now  due  and  ow  ing  to  these  plaintiffs  the  sum  of 
$1,264.35,  with  interest  thereon  from  the  17th  day  of  September,  1886. 

For  a  second  and  separate  cause  of  action  plaintiffs  allege: 

1.  That  plaintiffs  are  informed  and  believe  that  the  defendant 
Smalle  made  and  entered  into  a  sub-contract  with  the  defendants 
Elwood  H.  Newman,  Clark  A.  Newman,  who  were  then  and  are 
now  partners  in  business  under  the  firm  nam©  of  Newman  Brothers, 
to  do  and  perform  the  mason  work  in  the  erection  and  construction 
of  said  buildings  upon  said  premises  above  described,  and  said 
defendants  Newman  entered  upon  and  commenced  the  performance 
of  said  sub-contract. 

2.  That  plaintiffs  between  the  12th  day  of  May,  1886,  and  the  8th 
day  of  September,  1886,  sold,  delivered  and  furnished  to  the  defend- 
ants Newman,  goods  and  merchandise  consisting  of  building  material 
of  the  value  of  and  at  the  agreed  price  of  $405.75. 

3.  That  said  goods  were  sold,  delivered  and  furnished  for  the  pur- 
pose of  using  and  to  be  used  in  the  erection  and  construction  of  said 
buildings,  and  were  used  by  the  defendants  Newman  in  and  toward  the 
erection  and  construction  of  said  buildings  and  the  performance  of 
the  sub-contract  between  the  defendants  Smalle  and  Newman,  and  the 
contract  between  the  defendants  Van  Vechten  and  Smalle  aforesaid. 

4.  That  no  part  of  said  sum  of  $405.75  has  been  paid,  and  there 
is  now  due  and  owing  to  these  plaintiffs  from  the  defendants  New- 
man the  said  sum  of  $405.75,  with  interest  thereon  from  the  17th 
day  of  September,  1886. 

Plaintiffs  further  allege,  and  applicable  to  both  causes  of  action 
herein: 

1.  That  on  or  about  the  17th  day  of  September,  1886,  and  witin 
ninety  days  after  the  said  materials  were  furnished  by  these  plaintiffs 
as  aforesaid,  these  plaintiffs  duly  filed  in  the  office  of  the  clerk  of  the 
county  of  Richmond,  a  notice  of  claim  and  lien  in  the  manner  and 
form  and  containing  the  matters  and  verified  as  required  and  desig- 
nated by  law  for  the  perfection  of  a  mechanic's  lien,  under  an  act 
entitled  "  An  act  for  the  better  security  of  mechanics,  laborers  and 
others  who  perform  labor  and  furnish  materials  for  buiklings  and  other 
improvements  in  the  several  cities  and  counties  in  this  State,  and  to 
repeal  certain  acts  and  parts  of  acts,"  passed  May  27th,  1885,  a  copy 
of  which  notice  of  claim  is  hereto  annexed,  marked  K.xhibit  A,  and 
forms  a  part  of  this  complaint,  and  within  ten  days  thereafter  duly 
served  a  copy  of  such  notice  upon  the  owner  of  said  premises. 

2.  That  neither  the  said  lien  nor  the  claim  on  which  the  same  is 
founded,  or  any  part  thereof,  has  been  paid,  waived,  .satisfied  or  dis- 
charged, and  there  was  a  sum  or  suras  of  money  owing  by  the 
defendant  Van  X'echten  on  account  of  said  contract  at  the  time  of 
filing  said  notice  of  lien. 

3.  That  the  defendants  have  or  claim  to  have  some  interest  in  or 
lien  upon  the  said  premises  herein  described,  which  interest  or  lien 
accrued  and  is  subsecjuent  to  the  lien  of  these  plaintiffs. 

Wherefore,  the  plaintiffs  demand  judgment  that  said  claim  be 
adjudged  to  be  and  have  been  a  lien  upon  the  building  and  lot  of 

[Special  Actions  —  45.] 


7o6  mechanic's  lien. 


Art.  8.     Foreclosure  of   Liens. 


land  described  herein  as  of  the  date  of  the  fiUng  of  said  notice  of" 
lien,  to  wit,  the  17th  day  of  September,  1886. 

That  the  interest  which  the  defendant  Van  Vechten  had  in  the 
said  building  and  lot  of  land  on  the  17th  day  of  September,  1886,  be 
sold  as  provided  by  law,  and  that  from  the  proceeds  of  such  sale  the 
plaintiffs  be  paid  the  amount  of  their  lien  aforesaid  and  interest 
thereon  from  September    17th,  1886,  and  the  costs  of  this  action. 

That  plaintiffs  have- judgment  against  the  defendants  Smalle  and 
Newman  for  any  deficiency  that  may  remain  due  them  after  such  sale. 

That  the  defendants  and  all  persons  claiming  under  them  be  fore- 
closed of  all  right,  lien  and  equity  of  redemption  or  other  interest 
in  said  premises. 

That  plaintiff  may  have  such  other  or  further  judgment,  decree  or 
relief  as  may  be  necessary  to  protect  their  rights  in  the  premises. 

THORNTON,   EARLE  &  KIENDL, 

Attorneys  for  Plaintiffs. 

Precedent  for  Complaint. 

THE  CITY  COURT  OF  BROOKLYN. 

John  Morton,  Albert  Morton  and  John  E.  Morton, 
Plaintiffs, 

agst.  \    145  N.  Y.  244. 

Sarah    E.  Tucker,     Owen    O'Keefe    and    Thomas 
O'Hara,  Defendants. 


Plaintiffs  complaining  of  defendants  allege  to  the  court: 

1.  That  at  all  times  hereinafter  mentioned,  plaintiffs  were  and  now 
are  co-partners  doing  business  under  the  firm  name  of  John  Morton 

&  Sons. 

2.  That  between  the  20th  day  of  July,  1894,  and  the  12th  day  ot 
August,  1894,  plaintiffs  sold  and  delivered  unto  the  defendant  Sarah 
E.  Tucker,  lime,  bricks  and  lath  in  the  erection  of  seven  buildings 
on  a  plot  of  land  in  the  city  of  Brooklyn,  Kings  county,  N.  Y., 
described  as  follows:     (Insert  description.) 

3.  The  said  lime,  bricks  and  lath  were  sold  and  delivered  at  prices 
agreed  upon  between  said  Sarah  E.  Tucker  and  these  plaintiffs  which 
prices  amount  in  the  aggregate  to  the  sum  of  $528.49,  no  part  of 
which  has  been  paid,  and  the  same  is  now  due  to  plamtiffs  with  in- 
terest from  the  12th  day  of  August,  1894. 

4.  On  the  13th  day  of  August,  1894,  and  within  ninety  days  after 
furnishing  of  the  materials  herein  alleged,  plaintiffs  filed  in  the  office 
of  the  clerk  of  Kings  county  a  notice  of  lien,  wherein  was  contained 
the  names  and  residences  of  the  plaintiffs,  the  nature  and  amount 
of  the  materials  furnished  as  aforesaid,  the  name  of  the  said  defend- 
ant Sarah  E.  Tucker,  who  then  was  and  is  in  said  notice  stated  to  be 
the  owner  of  the  said  premises,  a  statement  that  the  plaintiffs  fur- 
nished the  said  materials  to  her,  said  Sarah  E.  Tucker,  and  a 
description  of  the  said  property.     The  said  lien  was  duly  verified  by 


mechanic's  lien.  707 


Art.  8.     Foreclosure  of  Liens. 


one  of  the  plaintiffs  and  thereupon  said  lien  was  duly  docketed  by 
the  county  clerk  of  said  county  against  the  said  property. 

5.  On  the  29th  day  of  August,  1S94,  said  Sarah  E.  Tucker  filed 
with  the  clerk  of  Kings  county  a  i)ond  to  said  clerk  duly  executed  by 
her  with  the  defendant  Owen  O'Keefe  and  Thomas  O'Hara,  as  sure- 
ties, who  are  freeholders,  in  the  sum  of  $600  (which  was  the  amount 
duly  fi.xed  by  the  Supreme  Court  conditioned  for  the  purpose  of 
payment  of  any  judgment  which  might  be  rendered  against  the  said 
property  in  any  action  brought  by  these  plaintiffs  by  reason  of  the 
facts  hereinbefore  stated),  and  the  said  sureties  duly  justified  thereon 
and  the  said  bond  was  approved  before  filing  by  a  justice  of  the 
Supreme  Court  of  Kings  county  and  an  order  was  duly  made  by  said 
Supreme  Court  discharging  the  said  lien  and  directing  its  cancella- 
tion by  the  clerk  of  Kings  county,  which  order  was  duly  entered  and 
filed  in  the  office  of  the  clerk  of  Kings  county  at  the  same  time  with 
said  bond,  and  thereupon  the  said  clerk  did  cancel  said  notice  of 
lien  and  said  premises  were  discharged  of  said  lien. 

6.  On  the  ist  day  of  October,  1894,  an  order  was  duly  made  by 
the  Supreme  Court  of  Kings  County,  after  due  notice  to  all  persons 
interested  including  the  defendants,  which  order  was  on  the  same  day 
duly  entered  and  filed  with  the  clerk  of  the  said  county  of  Kings, 
wherein  and  whereby  these  plaintiffs  were  permitted  to  maintain  an 
action  in  their  own  names  against  the  defendants  as  for  a  breach 
of  the  conditions  of  the  said  bond. 

Wherefore,  plaintiffs  demand  judgment  against  the  defendants  for 
said  sum  of  $528.49  with  interest  from  the  12th  day  of  August,  1894, 
that  the  said  lien  may  be  declared  a  valid  lien  until  the  time  of  its 
discharge  against  the  said  premises,  and  that  said  sureties  be 
declared  liable  by  virtue  thereof  and  that  plaintiffs  have  the  costs  of 
the  action.  J.  C.  &  H.  C.  SMITH  &  KOEPKE, 

Attorneys  for  Plaintiffs. 


Precedent  for  Complaint. 

SUPREME  COURT  — Delawark  County. 


Charles  E.  Ogden,  Plaintiff, 

ags(. 

Horace  Hills,  George  O.  Mead,  as  General  Assignee 
of  Horace  Hills,  and  for  the  Benefit  of  his  Credit- 
ors; Elizabeth  Alexander,  Elma  Pierson,  Jennie 
Brisack,  Mary  Alexander,  Martha  .Alexander, 
Stephen  Berry,  Alfred  Traddell,  (ieorge  R.  Sel- 
den,  G.  V.  Selden  and  W.  H.  Van  Wagenen,  De- 
fendants. 


140  N.  Y.  350. 


The  above-named  plaintiff  for  complaint  against  the  defendants 
above-named  alleges  on  information  and  belief  as  follows: 

That  on  the  26th  day  of  October,  1888,  and  until  July  29,  1889, 
this  plaintiff  and  one  Robert  J.  Oliver  were  co-partners  engaged  in 


7o8  mechanic's  lien. 


Art.  8.     Foreclosure  of  Liens. 


the  hardware,  plumbing  and  furnishing  business,  at  Walton,  Dela- 
ware county,  N.  Y.  That  on  the  said  last  named  date  said  firm  was 
dissolved  and  the  plaintiff  became  the  successor  of  said  firm  in  said 
business,  and  the  owner  of  all  claims  and  demands  due  or  to  stow 
due  to  said  firm  from  all  sources  and  persons,  and  was  to  finish  and 
complete  all  unfinished  contracts  and  works  that  said  firm  had  under- 
taken or  agreed  to  do,  and  after  said  last  named  date  and  up  to  this 
date  continued  and  still  continues  in  said  business  aforesaid. 

That  on  said  26th  day  of  October,  aforesaid,  one  Charles  Alexander, 
of  Walton  aforesaid,  was  the  owner  of  the  following  described  lands 
situate  in  the  village  of  Walton,  Delaware  county,  N.  Y.,  known 
and  described  as  follows: 

(Insert  description.) 

That  on  said  26th  day  of  October,  1888,  the  said  Charles  Alex- 
ander, desiring  to  build  a  house  on  said  lands,  did  on  that  day  duly 
make  and  enter  into  a  contract  in  writing  with  Horace  Hills,  a 
builder  of  said  village  and  one  of  the  above  named  defendants, 
whereby  said  Hills  agreed  to  furnish  the  material  and  build  a  house 
for  said  Alexander  upon  said  lot  and  foundation  to  be  erected  by 
Alexander,  and  have  the  same  completed  (except  that  the  painting 
was  to  be  done  by  said  Alexander)  by  October  ist,  1889,  for  which 
service  said  Alexander  in  and  by  said  contract  agreed  to  pay  said 
Hills  the  sum  of  $3,425,  in  the  following  maniler:  $1,000  during  the 
winter  following  the  making  of  said  contract  as  the  same  was 
needed;  $500  when  the  frame  was  up;  $500  when  the  same  was 
enclosed;  $500  when  the  house  was  ready  for  plastering,  and  the 
balance  when  the  said  house  was  completed,  so  far  as  said  contract 
required  said  Hills  to  complete  it.  It  was  further  agreed  in  and  by 
said  contract  that  said  house  should  be  constructed  under  the 
directions  of  said  Charles  Alexander,  who  did  during  the  construction 
of  said  house  in  all  its  parts,  exercise  personal  and  continuous 
supervision  thereof. 

Said  contract  further  provided  that  if  said  contractor  failed  to 
proceed  so  as  to  finish  said  building  within  the  time  aforesaid  there- 
for, then  said  Alexander  was  authorized,  on  giving  three  days'  notice, 
to  do  so  himself  and  the  expenses  thus  incurred  should  be  deducted 
from  said  contract  price. 

It  was  further  agreed  in  and  by  said  contract  that  said  Hills 
should  not  suffer  said  building  and  lands  to  be  or  become  encum- 
bered by  any  mechanic's  lien  or  other  liens  by  reason  of  work  or 
any  material  in  use  in  or  about  said  building,  and  should  said  Hills 
make  default  in  this  regard,  then  said  Alexander  was  authorized  to 
retain  the  amount  of  such  lien,  if  any,  from  said  contract  price  with 
all  costs  arising  by  reason  thereof. 

That  about  April,  1889,  the  said  Hills  entered  into  a  parol  contract 
with  said  firm  of  Oliver  &  Ogden  whereby  the  said  firm  agreed  to 
put  a  furnace  in  said  house  and  do  the  plumbing  required  by  the 
said  contract  between  Hills  and  Alexander,  for  the  sum  of  $350,  and 
which  work  was  to  be  done  during  the  construction  of  said  house 
when  it  could  be  done  to  the  best  advantage  of  said  firm.  That  said 
firm  also  put  a  slate  roof  on  said  house  of  the  value  of  $245.40;  they 


MECHANIC  S   LIEN.  7O9 


Art.  8.     Foreclosure  of  Liens. 


also  put  eave  troughs  and  conductors  thereon  of  the  value  of  $44.84 
and  furnished  other  hardware,  tin  and  material  of  the  value  of 
$72.21,  amounting  in  all  to  $712.45,  all  of  which  labor  and  material 
was  furnished  on  request  of  said  Horace  Hills  with  the  knowledge, 
acquiescence  and  approval  of  said  Charles  .\le.\ander,  who  personally 
inspected  and  witnessed  the  performance  of  said  work  and  furnished 
the  said   material. 

That  there  has  been  paid  on  account  of  the  labor,  work  and 
material  so  furnished  (excluding  certain  payment  of  $100,  made  by 
Charles  Alexander  for  and  on  account  of  certain  extra  work  not 
included  in  said  Hills-Alexander  contract,  performed  and  furnished 
at  the  request  and  for  said  Charles  Alexander)  the  sum  of  $200,  that 
the  balance  of  $512.45  is  still  due  and  unpaid.  That  all  of  the  said 
labor,  work  and  material  furnshed  as  aforesaid  on  request  of  and 
for  said  Horace  Hills,  had  been  furnished  and  performed  on  or  prior 
to  August  20,  1889,  except  a  small  part  of  the  connecting  pipes  of 
certain  stationary  wash-tubs,  which  were  on  hand  and  made  and  pre- 
pared for  said  use,  but  owing  to  the  incomplete  condition  of  the 
cellar  could  not  be  attached  at  that  time. 

That  on  the  2olh  day  of  August,  1889,  and  within  ninety  days  of 
the  completion  of  said  contract  and  furnishing  of  material  as  above 
set  forth,  with  and  for  said  Hills,  this  plaintiff  filed  a  notice  of  lien 
in  writing  in  the  office  of  the  clerk  of  the  county  of  Delaware,  in 
which  the  property  aforesaid  against  which  said  lien  is  asserted  is 
situated,  on  and  against  said  premises  for  the  amount  of  labor  and 
material  aforesaid,  to  wit:  $1,020.45.  That  said  notice  of  lien  con- 
tained the  name  and  residence  of  the  claimant  (the  plaintiff),  the 
nature  and  amount  of  the  labor  and  service  i)erformed  antl  the 
materials  furnished,  with  the  name  of  the  owner  as  hereinbefore 
given,  the  name  of  the  person,  Horace  Hills,  contractor,  by  whom 
said  firm  were  employed,  together  with  a  statement  that  the  work 
and  material  for  which  the  claim  w^as  made  had  been  performed 
except  the  connecting  pipes  aforesaid,  and  the  material  actually 
furnished,  and  contained  also  a  description  of  the  property  to  be 
charged  with  the  lien,  sufficient  for  identification. 

That  the  said  notice  of  lien  was  duly  verified  and  complied  in  all 
respects  with  the  requirements  of  the  statutes  of  the  state,  and  that 
on  the  20th  day  of  August  aforesaid,  said  lien  was  duly  entered  and 
docketed  by  said  clerk  in  the  lien  docket  kept  in  his  office,  and  the 
particulars  were  then  and  there  duly  entered  as  required  by  law; 
that  thereafter  and  on  said  20th  day  of  August,  1889,  the  plaintiff 
caused  a  copy  of  said  notice  of  lien  to  be  served  personally  on 
Charles  Alexander,  the  owner.  That  on  the  21st  day  of  August, 
1889,  the  said  Horace  Hills  duly  made,  executed  and  delivered  a 
deed  of  assignment  of  all  his  property  for  the  benefit  of  his  creditors 
to  said  Charles  .Mexander,  as  assignee,  who  duly  assented  to  and 
signed  said  deed.  That  the  said  deed  of  assignment  was  on  said 
2ist  day  of  August  aforesaid  duly  filed  and  recorded  in  the  office 
of  the  clerk  of  Delaware  county,  and  thereafter  said  Charles  .Alexan- 
der duly  gave  his  bond  as  such  assignee,  and  qualified  and  entered 
upon  the  discharge  of  the  duties  of  such  trust. 


710  MECHANIC  S    LIEN. 


Art.  8.     Foreclosure  of  Liens. 


That  on  the  15th  day  of  September,  1889,  and  while  said  Charles 
Alexander  was  in  the  discharge  of  his  duties  as  aforesaid,  he  died  at 
Walton  aforesaid,  intestate,  leaving  his  said  trust  business  unfinished, 
and  thereafter,  by  an  order  of  the  court  duly  made  and  entered,  Hon. 
George  O.  Mead  was  appointed  to  act  as  assignee  or  trustee  in  set- 
tling up  the  business  of  said  trust,  and  is  now  acting  as  such. 

That  the  said  Charles  Alexander  left  him  surviving  Elizabeth,  his 
widow,  and  the  following  children:  Emma  Pierson  and  Jennie  Bri- 
sack,  who  are  of  full  age,  and  Mary  Alexander  and  Martha  Alexan- 
der, infants  over  fourteen  years  of  age,  which  said  children  are  the 
owners  of  the  real  estate  and  lands  described  in  said  notice  of  lien. 

That  the  widow's  dower  in  said  lands  has  not  been  assigned  her  or 
in  any  manner  released. 

That  the  firm  of  Berry  &  Traddell,  composed  of  Stephen  Berry 
and  Alfred  Traddell,  defendants,  did  on  August  21,  1889,  duly  file  a 
notice  of  lien  in  the  clerk's  office  aforesaid,  against  the  said  lands 
and  buildings  above  mentioned  and  described  for  sand  furnished  said 
Hills  in  erecting  said   house,  and  they  now  claim  a  lien  thereon  for 

$37.74. 

That  the  firm  of  George  B.  Selden  &  Co.,  composed  of  George  B. 
Selden,  George  V.  Selden  and  W.  H.  Van  Wagenen,  did  on  August  29, 
1889,  file  a  lien  on  the  said  house  and  land  for  the  sum  of  $606.78 
in  the  office  aforesaid  for  lumber,  and  now  claim  a  lien  on  said  lands. 

That  there  are  no  other  parties  who  have  filed  liens  against  said 
property,  nor  have  subsequent  liens  by  judgment,  mortgage  or  con- 
veyance been  filed,  entered  or  recorded  against  said  property. 

The  plaintiff  further  shows  that  prior  to  the  death  of  said  Charles 
Alexander,  the  plaintiff  had,  under  the  supervision  of  the  said 
Charles  Alexander  completed  and  fully  performed  all  the  conditions 
of  his  said  contract  with  the  contractor  Hills  touching  the  aforesaid 
contract  for  putting  in  the  furnace  and  plumbing,  except  attaching 
water  pipes  to  stationary  wash  tubs,  and  that  the  plaintiff  tendered 
performance  thereof,  but  the  owner  refused  to  permit  plaintiff  to 
make  such  attachment,  which  would,  had  plaintiff  been  allowed  so  to 
do,  have  fully  completed  his  said  contract.  That  the  value  of  making 
such  attachment  did  not  exceed  $1. 

The  plaintiff  further  shows  that  on  or  about  October  ist,  1889,  the 
said  house  was  fully  completed  so  far  as  the  contract  with  Hills, 
contractor,  required,  and  that  the  sum  of  $2,500  is  all  the  payments 
made  on  said  building  contract  as  against  the  plaintiff's  said  lien. 

That  there  was  unpaid  and  owing  by  said  Charles  Alexander  to 
said  Hills  at  the  time  plaintiff's  said  lien  was  filed,  and  copy  served 
on  Charles  Alexander  as  aforesaid,  the  sum  of  $925  or  thereabouts. 

Therefore,  the  plaintiff  demands  judgment: 

1.  That  he  be  adjudged  to  have  a  lien  on  said  property  in  the  sum 
of  $512.45,  with  interest  from  August  20,  1889. 

2.  That  the  defendants  and  all  persons  claiming  under  them  or  any 
or  either  of  them,  be  foreclosed  of  all  equity  of  redemption  or  other 
interest  in  said  premises. 

3.  That  the  amount  and  priority  of  the  claims  of  any  of  defend- 
ants among  themselves  be  ascertained,  who  have  filed  liens. 


MECHANICS    MP:N.  JW 


Art.  8.     Foreclosure  of  Liens. 


4.  That  the  defendants'  interest  in  said  premises  be  sold  as  pro- 
vided by  law,  and  that  from  the  proceeds  of  such  sale  the  plaintiff  be 
paid  the  amount  of  his  lien  aforesaid,  and  interest  thereon,  August 
the  20th,  1889,  together  with  the  expenses  of  sale  and  costs  of  this 
action,  and  if  there  be  any  surplus  that  out  of  the  same  there  be  paid 
any  other  lien  against  the  saitl  property  in  order  of  their  priority. 

5.  That  the  plaintiff  have  judgment  against  Horace  Hills,  defend- 
ant, for  any  deficiency  that  may  remain  due  him  on  such  sale. 

6.  That  the  plaintiff  may  have  such  other,  further  or  different  judg- 
ment, relief,  decree  or  order  as  mav  be  necessary  to  protect  him  in 
the  premises.  '  ALEXANDER  NEISH, 

Plaintiff's  Attorney. 

Sub.  5.   M.\TTERs  ok  Pr.\ctick.     §§  8,  14,  18,  19,  21,  22. 

§  8.  Proceedings  to  enforce  lien. 

The  manner  and  form  of  instituting.;  and  prosecuting  any  such  action  to  judg- 
ment, or  an  appeal  from  such  judgment,  shall  be  the  same  as  in  actions  for  the 
foreclosure  of  mortgages  upon  real  property,  except  as  herein  otherwise  pro- 
vided. 

A  certified  copy  of  the  notice  of  lien  filed,  as  herein  provided,  shall  be  entitled 
to  be  read  in  evidence,  with  the  same  force  and  effect  as  if  the  original  were  pro- 
vided (produced),  and  such  copy  shall  ht prima  facie  evidence  of  the  execution 
and  filing  of  the  original. 

ii^  14.  Costs  and  disbursements. 

Costs  and  disbursements,  except  in  courts  not  of  record,  in  which  they  shall 
be  the  same  as  allowed  in  civil  actions  in  such  courts,  shall  rest  in  the  discretion 
of  the  court,  and  may  be  awarded  to  or  against  the  plaintiff  or  plaintiffs,  defend- 
ant or  defendants,  or  any  or  either  of  them  as  may  be  just  and  equitable,  except 
as  provided  in  section  19  of  this  act,  and  shall  be  included  in  the  judgment  re- 
covered therein. 

The  expenses  incurred  in  serving  the  summons  by  publication  may  be  allowed 
in  courts  not  of  record,  and  added  to   the  amount  of  costs  now  allowed  in  said 

courts. 

When  an  action  is  brought  in  a  court  of  record  such  direction  shall  be  made  in 
the  discretion  of  the  court  as  to  the  payment  of  costs  as  shall  be  just  and  equi- 
table, and  the  judgment  entered  shall  specify  to  whom  and  by  whom  the  costs 
are  to  be  paid. 

I  18.  Consolidation  of  actions. 

Any  persons,  firms,  corporations  or  associations  claiming  liens  upon  the  same 
property  may  join  in  the  same  action,  and  when  separate  actions  are  commenced 
the  court  in  which  the  first  action  was  brought  may,  upon  the  application  of  the 
•owner  of  the  property,  or  of  any  part  thereof,  or  of  any  party  to  either  action, 
•consolidate  them. 

The  provisions  of  this  section  shall  not  apply  to  actions  commenced  in  couits 
not  of  record. 

§  19.  Oflfer  of  payment. 

At  any  time  after  an  action  is  commenced,  the  owner  or  owners  of  the  prop- 
-ertv  affected,  may,  in  writing,  offer  to   pay  into  court  the   amount  stated  in  the 


712  MECHANIC'S   LIEN. 

Art.  8.     Foreclosure  of  Liens. 

offer,  or  to  execute  and  deposit  any  securities  or  papers  which  he  may  describe, 
in  discharge  of  the  lien  or  liens. 

If  the  offer  is  accepted  in  writing,  within  ten  days  thereafter,  the  court  in 
which  the  action  is  pending  may  make  an  order  that  on  executing  and  deposit- 
ing with  the  clerk  of  the  county  the  amount  offered  or  the  securities  or  papers 
described,  the  lien  or  liens  be  discharged  and  the  moneys  or  securities  deposited, 
take  the  place  of  the  property  upon  which  such  lien  or  liens  was  or  were  created, 
and  shall  be  subject  to  the  same. 

In  case  the  offer  shall  not  be  accepted  within  ten  days,  and  the  plaintiff  fails 
to  recover  any  more  favorable  judgment  against  the  property,  he  shall  pay  any 
costs  in  the  action  incurred  by  the  owner  from  the  time  of  the  offer. 

§  21.  Priority  of  liens,  how  determined. 

In  every  case  in  which  different  liens  are  asserted  against  property,  the  court 
in  the  judgment  must  declare  the  priority  of  each  lien,  and  the  proceeds  of  the 
sale  of  the  property  must  be  applied  to  each  lien  in  the  order  of  its  priority. 

§  22.  Contract  for  payment  in  specific  property. 

Whenever,  by  the  terms  of  his  contract,  the  owner  has  stipulated  for  the  de- 
livery of  bills,  notes  or  other  obligations  or  securities,  or  of  any  other  species  of 
property  in  lieu  of  money,  the  judgment  may  direct  that  such  substitutes  be  de- 
livered or  deposited  as  the  court  may  direct,  and  the  property  affected  by  the 
liens  can  only  be  directed  to  be  sold  in  default  of  the  owner  to  deliver  said  sub- 
stitutes within  such  time  as  may  be  directed. 

Service  of  an  amended  summons  and  complaint  in  an  action  to 
foreclose  a  lien  so  as  to  bring  in  other  lienors  than  those  first  made 
parties,  will  not  have  the  effect  to  keep  alive  their  liens  if  the  year 
in  which  they  must  commence  an  action  to  foreclose  has  expired 
at  the  date  of  the  amendment,  though  it  would  operate  to  that 
end  if  made  before  the  expiration  of  the  year.  Brandt  v.  ScJinicck- 
enbecher,  89  Hun,  406.  Section  399  of  the  Code  applies  to  the 
action  to  foreclose  a  mechanic's  lien,  and  such  proceeding  or 
action  will  be  deemed  to  have  been  commenced  when  the  notice 
authorized  by  the  act  is  delivered  to  the  sheriff  for  service.  Gee 
V.  Torrey,  yy  Hun,  23,  59  St.  Rep.  421,  28  Supp.  239. 

Where  a  judgment  has  been  recovered  for  the  debt  secured  by 
a  mechanic's  lien,  the  execution  issued  thereon  must  be  returned 
unsatisfied  before  an  action  to  foreclose  the  lien  can  be  main- 
tained. Barbig  v.  Kick,  25  Civ.  Pro.  R.  62,  35  Supp.  676.  An 
action  to  foreclose  a  lien  is,  in  effect,  an  action  on  behalf  of  each 
party  entitled  at  the  time  of  its  commencement  to  maintain  an 
action  to  enforce  his  own  Hen.  Ncuchatcl  AspJialtc  Co.  v.  The 
Mayor,  12  Misc.  26,  33  Supp.  64,  66  St.  Rep.  721. 

A  delay  of  one  year  in  proceeding  in  an  action,  after  the  com- 
plaint has  been  dismissed,  as  against  the  owner,  is  unreasonable 


MECHANICS   LIEN.  713 


Art.  8.     Foreclosure  of  Liens. 


neglect  to  proceed  within  §  1674  of  the  Code  which  entitles  the 
owner  to  an  order  cancelHng  the  lis  pendens.  Townscnd  v.  Work, 
79  Hun,  381,  61  St.  Rep.  497,  29  Supp.  791.  The  plaintiff  i.s  not 
precluded  by  an  account  rendered  but  not  assented  to  by  defend- 
ant, from  claiming  a  larger  sum ;  its  weight  as  an  admission  is  to 
be  determined  by  the  referee  hearing  the  cause.  Strykcr  v. 
Cassidy,  76  N.  Y.  50,  reversing  10  Hun,  18. 

When  the  right  to  a  mechanic's  Hen  has  accrued,  a  conveyance 
of  the  property  by  the  owner  will  not  defeat  the  lien  when  it  is 
shown  that  the  conveyance  was  made  not  in  good  faith,  but,  with 
intent  to  defraud  the  person  who  was  entitled  to  the  lien,  and  the 
validity  of  the  conveyance  may  be  attacked  in  the  action  brought 
to  foreclose  the  lien.  Nczv  York  Lumber,  etc.  Co.  v.  Sn'enty- 
third  Street  Building  Co.  5  App.  Div.  87. 

It  seems  that  where  the  lien  is  discharged  after  issue  has  been 
joined,  the  proper  course  is  to  file  a  supplemental  answer  setting 
up  that  fact.  Rulkley  v.  Kimball,  19  Supp.  672,  46  St.  Rep.  543. 
On  motion  to  discharge  a  lien  on  making  depo.sit.  the  validity  of 
the  lien  cannot  be  litigated  and  the  court  cannot  direct  the  dis- 
charge of  a  lien  without  a  deposit  when  cancelling  the  lis  pendens. 
Fischer  v.  Hus^ey,  11  Misc.  529,  32  Supp.  762,66  St.  Rep.  91. 
A  deposit  to  discharge  a  lien  is  not  a  payment,  but  merely  a  sub- 
stitute for  the  property  from  which  the  lien  was  discharged,  and 
the  lienor  is  not  entitled  to  the  money  until  he  establishes  his 
claim  in  an  action  brought  for  that  purpose.  Matter  of  Dean,  83 
Hun,  4I3»  31  Supp.  959,  64  St.   Rep.  729. 

When  the  amount  of  the  lien  is  deposited  in  the  court,  it  is 
unnecessary  to  show  the  filing  of  a  lis  pendens  because  the  lien 
has  been  shifted  from  the  real  estate  to  the  fund.  Ward  v- 
Kilpatrick,  85  N.  Y.  413.  Failure  to  file  a  lis  pendens  is  no 
objection  to  the  recovery  where  the  owner  pays  the  entire  amount 
remaining  unpaid  into  court.  It  is  no  defence  to  an  action  to 
foreclose  a  lien.  Bates  v.  Trustee  of  the  Masonie  Hall  and  Asylum 
Fund,  7  Misc.  609,  27  Supp.  951,  58  St.  Rep.  790;  Sheffield  v. 
Robinson,  71  Hun,  173.  57  St.  Rep.   146,  25  Supp.   1098. 

Declarations  of  defendant's  representative  in  charge  of  the 
work  upon  whom  defendant  relied  for  information  relating  thereto 
as  to  the  cause  of  delay,  is  admissible  on  behalf  of  plaintiff. 
Keough  Mfg.  Co.  v.  Eisenbergh,  7  Misc.  79,  27  Supp.  356,  57  St. 
Rep.  91.     A  defendant  sub-contractor  may  recover  on  his  answer, 


714 


MECHANIC  S   LIEN. 


Art.  S.     Foreclosure  of  Liens. 


although  the  process  in  an  action  attempted  to  be  brought  by 
him  was  not  served  on  the  principal  contractor.  Neuchatel 
Asphalte  Co.  v.  The  Mayor,  9  Misc.  376,  61  St.  Rep.  481,  30 
Supp.   252. 

In  Kenney  v.  Apgar,  93  N.  Y.  at  page  550,  Andrews,  J.,  speak- 
ing for  the  court,  all  concurring,  said  with  reference  to  the  right 
of  jury  trial  in  an  action  to  foreclose  a  mechanic's  lien:  "But  we 
think  it  is  also  a  conclusive  answer  that  the  action  was  an  action 
in  equity  triable  by  the  court  without  a  jury,  as  to  which  neither 
party  had  a  right  to  a  jury  trial  except  as  to  such  issues  as  might 
be  framed  and  sent  to  a  jury." 

In  Muldoon  v.  Pitt,  54  N.  Y.  269,  it  was  also  held  that  where 
issues  were  framed  and  sent  to  the  jury,  the  findings  on  applica- 
tion to  the  court  for  final  judgment  or  on  appeal  might  be  disre- 
garded and  judgment  given  on  the  merits  as  in  equity  cases. 
However,  in  Schillinger  Fire  Proof  Co.  v.  Arnott,  14  Supp.  326, 
at  Special  Term,  it  was  held  that  any  party  to  an  action  to  fore- 
close a  lien,  brought  under  the  Act  of  1885,  has  the  undoubted 
right  to  have  the  amount  of  his  claim  or  lien  fixed  by  the  verdict 
of  a  jury,  and  that  if  he  demands  the  right,  the  court  has  the 
power  to  make  an  order  for  trial  by  jury  of  that  question,  and 
that  any  party  demanding  it  will  be  absolutely  entitled  to  such 
an  order ;  that  the  case  would  then  be  sent  to  the  Special  Term 
in  order  that  the  court  might,  if  there  were  several  lienors  or 
claimants,  determine  the  equities  between  them  and  direct  the 
entry  of  a  proper  judgment. 

In  Riggs  V.  Shannon.  16  Supp.  939,  44  St.  Rep.  365,  27  Abb. 
N.  C.  456,  21  Civ.  Pro.  R.  434,  it  was  held  that  the  right  to  trial 
by  jury  generally,  as  to  issues  arising  in  actions  to  foreclose  me- 
chanic's liens  does  not  exist  except  as  to  any  issues  involving  the 
value  of  the  property  or  damages  (discussing  93  N.  Y.  539,  and 
14  Supp.  326,  supra).  It  is  further  held  that  where  a  counter- 
claim is  set  up  for  damages  sustained  through  delay  in  the  com- 
pletion of  the  contract,  issue  as  to  such  damages  must,  unless 
waived,  be  tried  by  jury. 

In  an  action  to  foreclose  a  mechanic's  lien,  the  court  has  no 
discretion  to  deny  a  trial  by  jur^'  of  questions  of  fact  arising  on  a 
counterclaim  for  damages.  Deeves  v.  Metropolitan,  etc.  Co.  6 
Misc.  91,  55  St.  Rep.  399,  26  Supp.  23;  Bradley  &  Czirrier  Co.  v. 
Herter,  23  Civ.  Pro.  R.  408,  62  St.  Rep.  72,  30  Supp.  270.     The 


mechanic's  hen.  715 


Art.  8.     Foreclosure  of  Liens. 


action  may  properly  be  sent  to  a  referee  when  the  owner  sets  up 
payments  and  the  trial  will  require  the  examination  of  a  long 
account,  and  in  such  case  the  reference  may  be  as  to  the  entire 
matter  in  controversy.  Tookcr  v.  Rinaldo,  11  Hun,  154;  Sclicahy 
V.  Tomlmson,    i  Week.  Dig.  24. 

In  an  action  to  foreclose  a  mechanic's  lien,  where  the  con- 
tractor abandoned  the  work  and  it  was  completed  by  the  owner, 
the  burden  rests  upon  the  lienor  to  prove  that  there  was  a  bal- 
ance due  to  the  contractor  after  deducting  the  cost  of  completion. 
Under  a  complaint  alleging  substantial  performance  of  the  con- 
tract, evidence  excusing  the  failure  of  the  contractor  to  perform 
and  tending  to  show  completion  of  the  building  by  the  owner  is 
inadmissible.  Beecher  v.  Schuback,  1  App.  Div.  359,  IJ  N.  Y. 
Supp.  325,  72  St.  Rep.  511. 

Where  the  evidence  in  an  action  to  foreclose  a  mechanic's  lien 
is  conflicting  both  as  to  the  terms  of  the  contract  and  adequate 
performance  of  the  work,  the  findings  of  the  referee  thereon  will 
not  be  disturbed.  Hoar  v.  JfcXica;  i.  App.  Div.  549,  },7  N.  Y. 
Supp.  433,  72  St.  Rep.  488.  The  lien  of  a  defendant  cannot  be 
cancelled  on  motion  of  another  defendant  who  served  no  notice 
of  trial  upon  him.     MaJioney  wMclValtcrs^gv  Hun,  247,  36  N.  Y. 

Supp.  149. 

The  writ  of  assistance  is  the  proper  means  to  put  the  purchaser 
at  foreclosure  of  mechanic's  liens  in  possession  of  the  property. 
O'Connor  v.  Schaeffd,  33  St.  Rep.  143-  >'  ^"PP-  737.  19  ^iv. 
Pro.  R.  378,  25  Abb.  N.  C.  344.  If,  for  want  of  a  continuance, 
a  lien  becomes  lost  during  the  pendency  of  the  action,  the  court 
having  acquired  jurisdiction  can  retain  it  and  render  a  personal 
judgment.  Darrozc  v.  Morgan,  65  N.  V.  333.  And  although  a 
lien  must  be  shown  to  have  existed  at  the  time  of  the  commence- 
ment of  the  proceedings,  yet  if  jurisdiction  is  thus  established, 
the  court  may  proceed  and  determine  the  controversy  and  render 
a  personal  judgment  after  the  lien  has  expired.  McGraivw  God- 
frey, 16  Abb.  (N.  S.)  358.  These  decisions  were  made  under  the 
Act  of  1863. 

The  price  agreed  to  be  paid  by  the  contract  for  work  is  evi- 
dence of  its  value.  Morgan  v.  McKcnzic,  17  Supp.  174,  43  St. 
Rep.  131.  The  burden  of  proof  is  on  the  claimant  to  establish  his 
lien  and  charge  the  property,  and  upon  a  sub-contractor  to  show 
that  the  moneys  to  which  he  claims  his  lien  attaches  are  due  from 


7i6  mechanic's  lien. 

Art.  8.     Foreclosure  of  Liens. 

the  owner  to  the  contractor.  Taylor  v.  Baldwin,  lo  Barb.  626; 
Haswellv.  Goodchild,  12  Wend.  373.  Where  the  architect's  cer- 
tificate has  been  waived,  by  making  payments  without  requiring 
its  production,  it  may  be  procured  at  any  time  before  the  trial  of 
the  action,  and  offered  in  evidence.  Hartley  v.  Ahirtha,  5  App. 
Div.  408.  In  an  action  by  a  sub-eontractor  to  foreclose  a  lien, 
evidence  as  to  a  personal  claim  against  the  owner  is  inadmissible. 
Carney  V.  Riley,  18  Misc.  11.  An  offer  under  §  19  which  failed 
to  state  that  it  was  made  "in  discharge  of  the  lien"  was  held 
to  be  ineffectual  to  defeat  the  right  of  the  lienor  for  further  costs ; 
so  held  in  Burton  v.  Rockwell,  63  Hun,  163,  17  Supp.  665,  44  St. 
Rep.  487;  Pratt,  J.,  following  Hall  v.  Dennerlein,  39  St.  Rep.  dy, 
14  Supp.  796,  which  holds  that  such  a  form  of  offer  is  requisite. 

Costs  are  in  the  discretion  of  the  court  to  be  awarded  as  may 
be  just  and  equitable.  Eagleson  v.  Clark,  2  Abb.  364.  The 
allowance  of  costs  in  an  action  to  foreclose  a  mechanic's  lien  rests 
wholly  in  the  discretion  of  the  court.  Carney  v.  Riley,  \%  Misc.  11 
An  action  to  foreclose  a  mechanic's  lien  is  not  an  action  to  deter- 
mine a  claim  to  real  property  under  §  3352  of  the  Code,  and  an  addi- 
tional allowance  cannot  be  granted  under  that  section.  Wright 
v.  Reiisens,  39  St.  Rep.  802.  W^here  the  lien  is  filed  against  an 
executor  or  administrator  and  the  claim  is  not  unreasonably 
resisted,  the  court  may,  in  its  discretion,  refuse  to  award  costs. 
Marryatt  v.  Riley,  2  Abb.  N.  C.  119.  Where  there  has  been  no 
offer  of  judgment,  payment  or  deposit  as  required  by  §  19,  plain- 
tiff is  entitled  to  costs  though  he  recover  less  than  the  amount 
claimed.      Valk  v.  MeKenzie,  16  Supp,  741,  43  St.  Rep.  26. 

The  court  may,  where  the  owner  defends  the  action,  compel 
him  to  pay  costs  in  addition  to  the  sum  actually  due  the  con- 
tractor. Kenney  v.  Apgar,  93  N.  Y.  535.  See  Morgan  v.  Stevens, 
6  Abb.  N.  C.  356;  Miillv.  Jones,  18  Supp.  359;  Holler  v.  Appa, 
18  Supp.  588,  47  St.  Rep.  485.  The  owner  against  whom  a  lien 
is  filed,  to  protect  himself  against  costs  must  discharge  the  lien 
by  deposit  in  the  mode  prescribed  by  statute.  Williamson  v. 
Hendricks,  10  Abb.  98. 

Sub.  6.   Judgment.     §§  15,  16,  23. 

§  15.  Personal  judgment. 

Whenever,  in  any  action  brought  under  the  provisions  of  this  act,  any  claim- 
ant shall  fail,  for  any  reason,  to  establish  a  valid  lien,  he  may,  nevertheless,  re- 
cover therein  judgment  against  the  party  or  parties  to  the  action  for  such  sum 


mechanic's  lien.  717 


Art.  8.     Foreclosure  of  Liens. 


or  sums  as  may  appear  to  be  due  to  him,  and  which  he  might  recover  in  an  ac- 
tion upon  a  contract  against  the  said  party  or  parties. 

§  16.   Transcript  of  judgment. 

A  transcript  of  every  judgment  rendered  under  and  according  to  the  pro- 
visions of  this  act,  headed  "  Lien  Docket,"  shall  be  furnished  by  the  clerk  of  the 
county  where  rendered,  and  docketed  to  the  successful  party  who  may  file  the 
same  with  the  clerk  of  any  other  county,  and  if  the  judgment  is  for  twenty-five 
dollars  or  upwards,  exclusive  of  costs,  the  same  shall  thereafter  be  a  lien  on  the 
real  property  in  the  county  where  the  same  is  filed  and  docketed,  of  every  person 
against  whom  the  same  is  rendered,  in  like  manner  and  to  the  same  extent  as  in 
other  actions  for  the  recovery  of  money  arising  on  contracts. 

When  the  action  is  tried  and  the  judgment  rendered  in  a  court  not  of  record, 
the  justice  of  the  court  in  which  the  action  was  tried,  or  other  person  authorized 
to  furnish  transcripts  of  judgments  therein,  shall  furnish  the  successful  party 
a  transcript  thereof,  who  may  file  the  same  with  the  clerk  of  the  county  with 
whom  the  notice  of  lien  is  filed. 

The  filing  of  such  transcript  shall  have  the  same  effect  as  the  filing  of  tran- 
scripts of  judgments  rendered  in  such  courts  not  of  record. 

In  all  cases  where  the  judgment  is  against  the  claimant  or  claimants,  the 
county  clerk  shall  enter  the  word  "  discharged  "  under  the  last  head  in  his  lien 
docket. 

§  23.   Judgment  for  deficiency. 

Whenever,  on  the  sale  of  property  against  which  a  notice  of  lien  is  filed,  as 
provided  in  the  fourth  section  in  this  act,  there  is  a  deficiency  of  proceeds,  judg- 
ment may  be  docketed  for  deficiency  against  the  persons,  firms,  corporations  or 
associations  named  in  the  judgment  as  personally  liable  therefor,  and  therein 
adjudged  to  pay  the  same  in  like  manner  and  with  like  effect,  as  in  actions  for 
the  foreclosure  of  mortgages. 

The  provisions  of  this  section  shall  not  apply  to  actions  commenced  in  courts 
not  of  record. 

Childs  V.  Bostwick^  65  Hovv^  146;  Schacttlcr  v.  Gardiner,  47 
N.  Y.  404;  McGraw  v.  Godfrey,  59  N.  Y.  610 ;  Burroughs  v. 
Tostcvan,  75  N.  Y.  571  ;  Darrow  v.  Morgan,  65  N.  Y.  m,  were 
decided  before  the  enactment  of  §  15,  and  are  either  overruled 
thereby  or  rendered  obsolete.  Since  the  statute,  Crouch  v.  Moll, 
8  Supp.  183,  Alticriv.  Lyon,  13  Supp.  617,  ^-j  St.  Rep.  881.  59 
Supr.  1 10,  and  Thomas  v.  SaJiagan,  10  Supp.  874,  have  applied 
its  provisions. 

The  court  may  proceed  as  the  circumstances  warrant  and  sjive 
a  common-law  judgment  where  it  appears  that  plaintiff  has  been 
deprived  of  a  lien  by  reason  of  a  foreclosure  sale  under  a  priar 
lien.  Crouch  v.  MolL  28  St.  Rep.  48,  8  Supp.  183.  Where  an 
undertaking  has  been  given  to  discharge  a  lien,  judgment  may  be 
against  the  defendant  personally  and  for  the  foreclosure  of  the 
lien.      Picket  v.  Golncr,  26  St,  Rep.  691,  7  Supp.  196. 


71 8  mechanic's  lien. 


Art.  8.     Foreclosure  of  Liens. 


A  judgment  directing  a  recovery  of  the  whole  amount  of  the 
lien  which  also  directs  a  sale  of  the  premises  and  in  case  of  a 
deficiency  that  plaintiff  have  judgment  and  execution  against  the 
owner  therefor,  is  proper.  Decker  v.  O'Brien,  i  App.  Div.  8i,  36 
N.  Y.  Supp.  1079,  72  St.  Rep.  22.  A  sub-contractor  is  entitled 
to  have  a  judgment  reviewed  when  an  appeal  has  been  taken 
although  he  has  not  served  a  notice  of  appeal,  as  under  the  pro- 
visions of  §  15,  providing  that  in  any  action  brought  to  foreclose  a 
lien,  if  the  party  fails  for  any  reason  to  establish  his  lien,  he  may 
still  recover  on  the  contract  such  sum  as  may  be  due  him,  and 
the  sub-contractor  would  otherwise  be  concluded  by  a  judgment 
and  appeal  from  any  other  action  brought  to  enforce  his  claim. 
Murdoch  v.  Jones,  3  App.  Div.  221. 

Where  it  appears  that  certain  installments  were  due  from  the 
owner  to  the  contractor,  which  the  former  has  wrongfully  refused 
to  pay,  the  lienors  are  entitled  to  payment  out  of  the  sum  due  at 
the  time  of  such  refusal,  although  the  building  cost  more  to  com- 
plete than  the  original  contract  price.  Thomas  v.  Sahagan,  32 
St.  Rep.  1057,  "•'JPP-  874-      A  judgment  must  direct  a  sale  of 

the  owner's  interest  in  the  property  and  prescribe  the  manner  in 
which  the  proceeds  shall  be  distributed.  Eagleson  v.  Clarh,  2 
E.  D.  Smith,  644;  Althonsc  v.  JVarren,  2  E.  D.  Smith,  367; 
Lenox  v.  Yorkville  Church,  2  E,  D.  Smith,  673  ;  SdiUJi  v.  Corey, 
3  E.  D.  Smith,  642 ;  Mcehan  v.  Williavis,  2  Daly,  367.  Subse- 
quent liens  are  cut  off  by  a  judgment  and  sale  in  accordance 
therewith.  Livingsto7i  \.  Miller,  16  Abb.  371.  A  purchaser  under 
such  judgment  may  contest  the  validity  of  a  prior  mortgage. 
Nichols  V.  Hill,  6  T.  &  C.  335  ;  K7tickerbocker  Ins.  Co.  v.  Hill,  6  T. 
&  C.  285. 

Precedent  for  Judgment, 

COUNTY  COURT  — Col  NTY  of  Richmond. 

John  H.  Van  Clief  and  William  S.  Van  Clief 
agsL 

Hanna  R.  Van  Vechten,  George  L.  Smalle,  Elwood  J-    130  N.  Y.  571, 
H.    Newman,    Clark    A.    Newman,    Karl     Feist, 
agent;  Abram   B.  Mersereau,   George  Mersereau 
and  Vernon  R.  Gregg. 


The  issues  in  this  action  having  been  referred  by  order  of  this 
court,  dated   October  30,  1888.  to  Sidney  F.  Rawson,  Esq.,  as  sole 


MECHANIC  S   LIEN.  719 


Art.  8.     Foreclosure  of  Liens. 


referee  to  hear  and  determine  the  same,  and  the  said  issues  having 
been  heard,  tried  and  determined  and  the  said  referee  having  made 
his  findings  of  fact  and  law  and  report  thereon,  dated  February  26, 
1889,  which  findings  of  fact  and  conclusions  of  law  and  report  were 
filed  with  the  clerk  of  this  court  on  the  27th  day  of  February,  1889, 
by  which  report  and  findings  it  appears  that  there  was  due  and 
unpaid  and  owing  from  the  defendant,  Hanna  R.  Van  Vechten,  as 
owner,  to  George  L.  Smalle,  contractor,  at  the  time  of  the  filing  of 
the  notice  of  lien  by  the  plaintiffs  herein,  on  the  17th  day  of  Septem- 
ber, 1886,  the  sum  of  $800,  and  that  the  plaintiffs  by  filing  such 
notice  of  lien  acquired  a  mechanic's  lien  against  the  defendant, 
Hanna  R.  Van  Vechten,  as  owner  of  the  premises  hereinafter  de- 
scribed, against  said  premises  in  pursuance  of  and  by  and  with  the 
terms  of  the  statute  in  such  case  made  and  provided,  by  virtue  of  the 
performance  of  certain  labor  upon  and  the  furnishing  of  certain 
materials  to  be  used  and  which  were  used  in  the  construction  of  the 
building  upon  the  lot  or  parcel  of  land  hereinafter  described,  which 
said  lien  has  heretofore,  and  within  the  time  allowed  by  law  for  that 
purpose,  been  duly  perfected  and  that  this  action  was  begun  to  fore- 
close said  lien. 

Now,  on  motion  of  Thornton,  Earle  &  Kiendl,  attorneys  for  the 
plaintiffs,  it  is  adjudged  that  the  premises  described  in  the  complaint 
in  this  action  as  hereinafter  set  forth,  or  so  much  thereof  as  may  be 
sufficient  out  of  the  moneys  applicable  thereto  to  pay  the  amount 
due  to  the  plaintilfs  for  principal,  interest  and  costs,  and  which  may 
be  sold  separately  without  material  injury  to  the  parties  interested, 
be  sold  at  public  auction  in  the  county  of  Richmond  by  or  under  the 
direction  of  Sidney  F.  Rawson  of  the  county  of  Richmond,  a  referee 
hereby  duly  appointed  for  that  purpose,  that  the  said  referee  shall 
give  public  notice  of  the  time  and  place  of  such  sale  according  to  law 
and  the  practice  of  this  court. 

That  either  or  any  of  the  parties  to  this  action  may  purchase  at 
such  sale;  that  the  referee  shall  execute  to  the  purchaser  or  pur- 
chasers a  deed  or  deeds  of  the  premises  sold. 

That  out  of  the  moneys  arising  from  such  sale,  after  deducting 
the  amount  of  his  fees  and  expenses  on  such  sale  and  any  lien  or 
liens  upon  said  premises  so  sold  at  the  time  of  such  sale  for  taxes  or 
assessments,  the  said  referee  shall  first  pay  to  the  plaintiffs  or  to 
their  attorneys  the  sum  of  $655.21,  adjudged  to  the  plaintil'fs  for 
their  costs,  disbursements  and  allowance  in  this  action,  with  the 
interest  thereon  from  the  date  hereof,  and  then  pay  to  the  plaintiffs 
or  their  attorneys  herein  the  sum  of  $917.30,  with  interest  thereon 
from  the  date  of  said  report,  or  so  much  thereof  as  the  purchase 
money  of  the  said  premises  will  pay  of  the  same,  take  receipt  therefor 
and  file  the  same  with  his  report  of  .sale. 

That  the  surplus  moneys  arising  from  the  said  sale,  if  any  there 
should  remain,  be  paid  into  this  court  within  five  days  after  the  same 
is  received  and  ascertainable,  subject  to  the  further  order  of  the 
court;  that  said  referee  make  a  report  of  such  sale  and  file  it  with 
the  clerk  of  this  court  with  all  convenient  speed. 

And  it  is   further  adjudged  that  the  defendants  and  all  persons 


720  MECHANIC  S    LIEN. 


Art.  8.     Foreclosure  of  Liens. 


claiming  under  them,  after  the  filing  of  the  notice  of  pendency  of 
this  action,  be  forever  barred  and  foreclosed  of  all  right,  title, 
interest  and  equity  of  redemption  in  the  premises  so  sold  or  any  part 
thereof,  and  that  the  purchaser  or  purchasers  be  let  into  possession 
on  the  production  of  the  said  referee's  deed  and  a  certified  copy  of 
the  order  confirming  the  report  of  sale. 

The  following  is  a  description  of  the  mortgaged  premises  hereinbe- 
fore mentioned: 

(Insert  description.) 

Extra  allowance  to  plaintiffs  of  five  per  cent. 

STEPHEN  D.   STEVENS, 

County  Judge. 

Precedent  for  Judgment. 

SUPREME  COURT  — Delaware  County. 


I 


Charles  E.  Ogden,  Plaintiff, 
agst 

Horace  Hills,  George  O.  Mead,  as  General  Assignee 
of  Horace,  Hills  for  the  Benefit  of  his  Creditors; 
Elizabeth  Alexander,  Elma  Pierson,  Jennie  Bri-  }-  140  N.  Y.  356. 
sack.  Mary  Alexander,  Martha  Alexander,  infants, 
by  John  W.  Alexander,  their  Guardian  ad  litem  ; 
Steven  Berry,  Alfred  Twaddell,  George  B.  Selden, 
G.  V.  Selden  and  W.  H.  Van  Wagenen,  Defend- 
ants. 

This  action  being  for  the  foreclosure  of  a  mechanic's  lien  and  the 
issues  therein  having  been  duly  referred  to  Hon.  W.  B.  Edwards, 
as  sole  referee  to  hear  and  determine  the  same,  and  all  the  issues 
therein,  and  the  said  cause  and  all  the  issues  thereon  having  been 
brought  to  trial  before  the  said  referee  and  the  said  referee  having 
made  his  report,  bearing  date  of  May  4th,  1891,  and  which  has  been 
duly  filed,  whereby  the  said  referee  orders  and  directs  judgment  in 
favor  of  the  plaintiff  and  against  the  defendants  barring  and  fore- 
closing them  of  all  interest  and  equity  of  redemption  in  and  to  the 
premises  described  in  the  complaint  herein  and  for  the  sale  of  all  the 
right,  title  and  interest  which  the  defendants  Elizabeth  Alexander, 
Mary  Alexander,  Martha  Alexander,  Elma  Pierson  and  Jennie  Bri- 
sack,  acquired  on  the  death  of  Charles  Alexander,  intestate,  and  all 
the  interests  that  the  said  Charles  Alexander  had  therein  on  the 
20th  day  of  August,  1889,  at  which  time  the  lien  herein  was  filed 
according  to  law,  and  for  the  payment  to  the  plaintiff  from  the  pro- 
ceeds of  such  sale  of  the  sum  of  $556.90  and  interest  thereon,  and  the 
plaintiff's  costs  and  disbursements  of  this  action  to  be  taxed,  which 
are  hereby  granted  him,  and  in  case  such  proceeds  are  insufficient  to 
pay  the  sum  aforesaid  for  payment  against  the  defendant  Horace 
Hills  for  the  amount  of  any  deficiency  so  remaining,  and  the  plain- 


MECHAMC'S    LIEN.  72I 


Art.  8.     Foreclosure  of  Liens. 


tiff's  costs  and  disbursements  in  the  action   having  been  duly  taxed 

at  the  sum  of  §282. 

Now,  on  motion  of  .Me.xander  Nc-ish,  plaintiff's  attorney,  it  is 
adjudged  and  decreed  that  all  the  .ight,  title  and  interest  which 
Charles  Alexander  had  on  the  20th  day  of  August,  1889,  in  and  to 
the  premises  described  in  the  complaint  herein  and  hereinafter  par- 
ticularly described  (which  interest  upon  the  death  of  said  Charles 
Alexander  on  the  15th  day  of  September,  1S89,  devolved  upon  the 
defendants  herein,  Elizabeth  Alexander,  his  widow,  Klma  Pierson, 
Jennie  Brisack  and  Mary  Alexander  and  Martha  .Alexander,  children 
and  sole  heirs  at  law  of  the  said  Charles  Alexander)  at  the  time  of 
filing  plaintiff's  lien  described  in  the  complaint  herein,  be  sold  at 
public  auction  at  Walton,  N.  Y.,  by  and  under  the  direction  of  the 
sheriff  of  the  county  of  Delaware.  That  the  said  sheriff  give  public 
notice  of  the  time  and  place  of  such  sale  according  to  law.  That 
either  of  the  parties  to  this  action  may  purchase  at  said  sale,  that 
said  sheriff  deliver  to  the  purchaser  or  purchasers  a  deed  of  the 
premises  sold,  on  the  purchaser  complying  with  the  terms  on  which 
the  same  were  sold,  'rhat  out  of  the  proceeds  of  such  sale,  after 
deducting  his  fees  and  the  expenses  thereof, the  sheriff  pay  to  the  plain- 
tiff or  his  attorney  $282  costs  taxed  as  aforesaid,  and  adjudged  to  said 
plaintiff  with  interest  thereon  from  this  date,  and  that  he  further 
pay  to  the  plaintiff  or  his  attorney,  the  sum  of  §556.90,  the  amount 
of  claim  and  interest  reported  due  as  aforesaid,  and  with  interest, 
thereon  from  the  date  of  said  report,  viz.:  May  4th,  1891,  or  so 
much  thereof  as  the  purchase  money  of  said  premises  will  pay  of  the 
same,  and  take  receipts  therefor  and  file  them  with  his  report  of  sale ; 
and  that  the  purchaser  at  such  sale  be  let  into  possession  of  the 
premises  on  production  of  the  deed.  That  said  sheriff  pay  the  sur- 
plus  arising  on  said  sale,  if  any  there  be,  to  the  treasurer  of  the  county 
of  Delaware  to  the  credit  of  this  action  within  five  days  after  the 
same  shall  be  received  and  ascertainable,  subject  to  the  further 
order  of  this  court. 

That  he  make  a  report  of  such  sale  and  file  it  with  all  convenient 
speed  with  the  clerk  of  this  court;  that  if  there  be  any  deficiency 
remaining  on  such  sale  said  sheriff  specify  the  amount  thereof  in  his 
report  of  sale  and  that  the  plaintiff  recover  of  the  ilcfendant  Horace 
Hills  the  amount  of  deficiency  so  remaining  and  have  execution 
therefor. 

And  it  is  further  adjudged  that  the  defendants  and  all  persons 
claiming  under  them  or  either  of  them,  subsetiuent  to  the  filing  of 
the  notice  of  the  pendency  of  this  action  (which  appears  by  said 
referee's  report  was  filed  and  recorded  in  the  office  of  the  clerk  of 
Delaware  county  on  January  16,  1890)  be  forever  barred  and  fore- 
closed of  all  right,  title,  interest,  estate,  claim,  lien  and  equity  of 
redemption  of,  in  and  to  the  premises  sold  as  aforesaid,  and  every 
part  thereof,  with  the  appurtenances. 

The  following  is  a  description  of  said  premises  as  set  forth  in  the 
complaint:     (Insert  description.) 

GEORGE  W.   CR.\\\  loKD. 

Clerk. 
[Special  Actions  —  46.] 


722  MECHANIC  S    LIEN. 


Art.  8.     Foreclosure  of  Liens. 


Sub.  7.   Foreclosure  in  Courts  not  of  Record.     §§  9-13. 

§  9.  Jurisdiction  ;  summons  and  complaint. 

An  action  to  foreclose  a  lien  provided  for  in  this  act,  may  be  brought  in  a 
court  not  of  record,  which  would  have  jurisdiction  to  render  a  judgment  in  an 
action  upon  a  contract  for  a  sum  equal  to  the  amount  of  the  lien,  and  shall  be 
commenced  by  the  personal  service  anywhere  within  this  State,  of  a  summons 
and  complaint  verified  according  to  the  provisions  of  section  five  hundred  and 
twenty-six  of  the  Code  of  Civil  Procedure,  upon  the  owner  or  other  person  in  in- 
terest as  described  heretofore  in  this  act. 

The  complaint  must  set  forth  substantially  all  the  facts  contained  in  the  notice 
of  lien  filed  with  the  clerk  of  the  county  as  provided  in  section  five  (four)  of  this 
act,  and  the  substance  of  the  contract. 

The  form  and  contents  of  the  summons  shall  be  the  same  as  prescribed  by  the 
Code  of  Civil  Procedure  for  the  commencement  of  an  action  in  a  court  not  of 
record. 

The  summons  must  be  returnable  not  less  than  twelve  nor  more  than  twenty 
days  after  the  date  when  it  is  issued. 

§  10.  Service  of  summons  by  publication. 

When  the  summons  in  an  action  in  a  court  not  of  record  cannot  be  served  per- 
sonally on  the  owner  or  party  in  interest,  by  reason  of  absence  from  the  State 
or  concealment  therein,  such  service  may  be  made  by  leaving  a  copy  of  such 
summons  at  the  last  place  of  residence  of  such  owner  or  person  in  interest,  as 
aforesaid,  and  by  publishing  a  copy  of  such  summons  for  three  weeks  in  suc- 
cession in  a  newspaper  published  in  the  city  or  county  where  the  property  is 
situated. 

If  the  service  of  the  summons  is  made  by  publication,  the  time  when  said 
notice  is  returnable  shall  commence  to  run  from  the  day  of  the  last  publication. 

§  11.  Procedure. 

At  the  time  and  place  specified  in  the  summons  for  the  return  thereof,  issue 
must  be  joined  if  both  parties  appear,  by  the  owner  or  other  person  in  interest 
filing  with  the  justice  an  answer  in  writing  verified  as  herein  provided  for  veri- 
fying the  complaint,  and  which  may  contain  a  general  denial  of  each  allegation 
of  the  complaint,  or  a  specific  denial  of  one  or  more  of  the  material  allegations 
thereof;  it  may  also  set  forth  any  legal  or  equitable  defence  or  counterclaim  to 
such  complaint. 

If  the  owner  or  other  party  in  interest  fails  to  appear  on  the  return  day  of  the 
summons  on  proof  by  affidavit  of  the  service  of  the  summons  and  complaint,  if 
personal  service  thereof  be  made,  or  if  by  publication  or  (on)  proof  of  the  service 
of  summons  by  advertisement,  judgment  may  be  entered  for  the  amount 
claimed  in  the  complaint,  with  the  costs;  execution  may  thereupon  be  issued  for 
the  collection  of  said  judgment  and  costs,  the  same  as  upon  judgments  in  ac- 
tions on  contract  in  such  courts,  except  that  the  execution  shall  direct  the  officer 
to  sell  the  right,  title  and  interest  of  the  owner  or  other  person  in  interest  as 
aforesaid  in  the  premises,  upon  which  the  claim  set  forth  in  the  compxlaint  was 
a  lien  at  the  time  of  filing  the  notice  of  lien  prescribed  in  the  fourth  section  of 
his  act. 


MECHANIC  S   LIEN.  723 


Art.  9.     Liens  against  Municipal  Property  under  C<jntracts. 


§  12.  Trial  of  issues. 

The  issue  joined  as  provided  in  the  preceding  section  must  be  tried  the  same 
as  other  issues  are  tried  in  the  respective  courts  in  which  the  action  is  brought, 
and  the  judgment  thereon  be  enforced;  if  for  the  claimant,  as  provided  in  the 
preceding  section,  if  for  the  owner  or  other  person  in  interest,  it  must  be  en- 
forced the  same  as  in  actions  arisintj  on  contract  in  the  respective  courts. 

§  13.   Appeals  from  such  courts. 

Appeals  may  be  taken  from  such  judgments  rendered  in  courts  not  of  record, 
in  the  same  manner  and  according  to  the  same  provisions  provided  by  statute 
for  appeals  from  judgments  in  actions  in  such  courts  arising  on  contract  for  the 
recovery  of  money  only. 

ARTICLE  IX. 

Liens  Against  Municipal   Property  Under  Contracts. 
Laws   1892,  Chap.  629,  §§   1-16. 

Chapter  315  of  the  Laws  of  1878  is  entitled  "An  act  to  secure 
the  payment  of  laborers,  mechanics,  traders  and  persons  furnish- 
ing materials  toward  the  performing  of  any  public  work  in  the 
cities  of  the  State  of  New  York."  This  was  amended  by  Chapter 
429  of  the  Laws  of  1881,  Chapter  255  of  the  Laws  of  1891,  and 
Chapter  629  of  the  Laws  of  1892.  Like  provisions  are  contained 
in  the  Consolidation  Act  of  New  York  City,  §  1824  to  §  1838. 

The  provisions  of  the  statute  as  it  now  stands  are  as  follows: 

§  1.  Who  may  acquire  lien.     Against  vrhat  property  lien  to  attach. 

Any  person  or  persons  who  shall  hereafter  as  laborer,  mechanic,  merchant  or 
trader,  in  pursuance  of  or  in  conformity  with  the  terms  of  any  contract  made  be- 
tween any  person  or  persons,  firms  or  corporations,  and  any  municipal  corpora- 
tion, county,  town,  incorporated  city  or  village  in  the  State  of  New  York,  perform 
any  labor  or  furnish  any  material  toward  the  performance  and  completion  <if  any 
contract  made  with  said  municipal  corporation,  county,  town,  city  or  village,  on 
complying  with  the  second  (next)  section  of  this  act,  shall  have  a  lien  for  the 
value  of  such  labor  or  materials,  or  either,  upon  the  moneys  in  control  of  said 
municipal  corporation,  county,  town,  city  or  village,  due  or  to  grow  due  under 
said  contract  with  said  municipal  corporation,  county,  town,  city  or  village,  to 
the  full  value  of  such  claim  or  demand,  and  these  liens  may  be  filed  and  become 
an  absolute  lien  to  the  full  and  par  value  of  all  such  work  and  materials,  to  the 
extent  of  the  amount  due  or  to  grow  due  on  said  contract,  in  favor  of  every  per- 
son or  persons,  firms  or  corporations  who  shall  be  employed  or  furnish  materials. 
to  the  person  or  persons  with  whom  said  contract  with  said  municipal  corpora- 
tion, county,  town,  city  or  village  is  made,  or  the  sub-contractors  of  said  person 
or  persons,  their  assigns  or  legal  representatives,  provided  that  no  municipal 
corporation,  county,  town,  city  or  village  shall  be  required  to  pay  a  greater 
amount  than  the  contract  price  or  value  of  the  work  and  the  materials  furnished 
when  no  specific  contract  is  made  in  the  performance  of  said  work  by  the 
contractor. 


724  mechanic's  lien. 


Art.  9.     Liens  against  Municipal  Property  under  Contracts. 


§  2.  Claim  of  lienor,  contents,  filing. 

At  any  time  before  the  whole  work  to  be  performed  by  the  contractor  for  the 
municipal  corporation,  county,  town,  city  or  village,  is  completed  or  accepted 
by  the  municipal  corporation,  county,  town,  city  or  village,  and  within  thirty  days 
after  the  same  is  so  completed  or  accepted,  any  claimant  may  file  with  the  head 
of  the  department  or  bureau  having  charge  of  said  work,  and  with  the  financial 
officer  of  said  municipal  corporation,  county,  town,  city  or  village,  notice,  stat- 
ing the  residence  of  the  claimant,  verified  by  such  claimant's  oath  or  affirmation, 
stating  the  amount  claimed,  from  whom  due,  and  if  not  due,  when  it  will  be  due, 
giving  the  amount  of  the  demand  after  deducting  all  just  credits  and  offsets, 
with  the  name  of  the  person  or  persons,  firms  or  corporations,  by  whom  em- 
ployed, or  to  whom  materials  were  furnished;  also  a  statement  of  the  terms, 
time  given,  conditions  of  the  contract,  and  also  that  the  work  was  done  or  ma- 
terials were  furnished  to  said  contractor,  and  were  actually  performed  or  used 
in  the  execution  or  completion  of  said  contract  with  said  municipal  corporation, 
countv,  town,  city  or  village,  but  no  variance  as  to  the  name  of  the  contractor 
shall  affect  the  validity  of  the  said  claim  or  lien. 

§  3.  Docketing  lien. 

The  financial  officer  of  said  municipal  corporation,  county,  town,  city  or  vil- 
lage, shall  enter  the  claims  in  a  book  kept  for  that  purpose  by  him,  called  the 
"  lien  book."  Such  entry  shall  contain  the  name  and  residence  of  the  claimant, 
the  name  of  the  contractor,  the  amount  and  date  of  the  filing,  and  a  brief  desig- 
nation of  the  contract  upon  which  the  claim  is  made. 

§  4.  Duration  of  lien  ;  lis  pendens. 

No  lien  provided  for  in  this  act  shall  be  binding  upon  the  property  therein  de- 
scribed unless  an  action  be  commenced  within  ninety  days  from  the  filing  of 
the  same,  and  a  notice  of  pendency  of  said  action  be  filed  with  the  financial  oflS- 
cer  of  the  municipal  corporation,  county,  town,  city  or  village. 

§  5.  Extent  of  lien. 

The  lien  shall  attach  from  the  time  of  filing  thereof  to  the  extent  of  the  liability 
of  the  contractor  for  the  claim  preferred  upon  any  funds  which  may  be  due  or  to 
grow  due  to  said  contractor  from  said  municipal  corporation,  county,  town,  city 
or  village,  under  the  contract  against  which  the  lien  is  filed. 

S^  6.  Enforcement  and  termination  of  lien. 

Any  claimant  who  has  filed  the  notice  mentioned  in  the  second  section  of  this 
act,  may  enforce  said  claim  against  the  said  fund  therein  designated,  and  against 
the  person  or  persons,  firms  or  corporations  liable  for  the  debt  by  a  civil  action. 
Actions  to  determine  or  terminate  said  liens  may  be  commenced  by  the  contractor 
or  said  municipal  corporation,  county,  town,  city  or  village,  in  any  court  of 
competent  jurisdiction. 

§  7.  Parties;  priorities. 

The  plaintiff  must  make  all  parties  who  have  filed  claims,  the  contractor,  and 
the  said  municipal  corporation,  county,  town,  city  or  village,  parties  defendant, 
and  as  to  all  parcies  against  whom  no  personal  claim  is  made,  the  plaintiff  may 
with  the  summons,  serve  a  notice  stating  briefly  the  object  of  the  action,  and 
that  no  personal  claim  is  made.     But  ail  parties  who  have  filed  claims   under 


mechanic's  lien.  725 


Art.  9.     Liens  against  Municipal  Property  under  Contracts. 


this  act  may,  by  answer  in  such  action,  set  forth  the  same,  and  the  court  in 
which  the  action  is  brought  may  decide  as  to  the  extent,  justice  and  priority  of 
the  claims  of  all  the  parties  to  the  action. 

^  8.  Judgment;  cKecution;  appeal. 

The  court  in  which  the  action  is  brought  shall  determine  the  validity  of  the 
lien,  the  amount  due  from  the  debtor  to  the  contractor  under  his  contract,  and 
from  the  contractor  to  the  respective  claimants,  and  shall  render  judgment,  di- 
recting that  the  said  municipal  corporation,  county,  town,  city  or  village,  shall 
pay  over  to  the  claimants  for  work  done  and  materials  furnished  in  the  execution  of 
the  said  contract  or  contracts,  whose  claims  or  liens  it  shall  hold  to  be  valid  and 
just,  in  the  order  of  their  priority  as  determined  by  said  court,  to  the  extent  of 
the  sum  found  due  to  said  claimants  from  their  contractor  so  much  of  said  funds 
or  money  which  may  be  due  from  the  said  municipal  corporation,  county,  town, 
city  or  village,  to  the  contractor,  under  his  contract,  against  which  the  lien  is 
filed,  and  will  satisfy  their  liens  or  claims,  with  interest  and  costs,  to  the  extent 
of  the  amount  due  from  said  municipal  corporation,  county,  town,  city  or  vil- 
lage to  said  contractor.  The  judgment  rendered  under  this  act  may  be  enforced 
by  execution,  and  an  appeal  may  be  taken  therefrom  in  the  same  time  and  man- 
ner as  in  civil  actions. 

§  9.   Successive  liens;  priority  according  to  date  ot  filing. 

In  case  of  successive  liens,  or  a  number  of  liens,  in  favor  of  different  persons, 
their  rights  and  priorities  shall  be  determined  as  follows:  Persons  standing  in 
equal  degrees  as  co-laborers,  or  various  persons  furnishing  materials  shall  have 
priority  according  to  the  date  of  the  filing  of  their  liens.  When  several  lien  no- 
tices are  filed  for  the  same  demand,  the  judgment  shall  provide  for  the  proper 
payments  according  to  priority,  so  that,  under  liens  filed,  double  payment  shall 
not  be  required. 

§  10.  Consolidation  of  actions. 

When  separate  actions  are  commenced,  the  court  in  which  the  first  action  was 
brought  may,  upon  the  application  of  the  said  municipal  corporation,  county, 
town,  city  or  village,  consolidate  them. 

§  11.  Costs  in  the  discretion  of  the  court. 

Costs  in  all  actions  shall  rest  in  the  discretion  of  the  court,  and  shall  be 
awarded  to  or  against  the  plaintiff  or  defendants,  or  any  or  either  of  them,  as 
may  be  just. 

§  12.  Rights  to  personal  action  not  affected. 

Nothing  contained  in  this  act  shall  be  construed  to  impair  or  affect  the  right 
of  any  person  to  whom  any  debt  may  be  due  for  work  done  or  materials  fur- 
nished to  maintain  a  personal  action  to  recover  such  debt  against  the  person 
liable  therefor. 

^13.  How  lien  may  be  discharged. 

The  lien  may  be  discharged  as  follows: 

First.  By  filing  a  certificate  of  the  claimant,  or  his  successor  in  interest,  duly 
acknowledged  and  proved,  stating  that  the  lien  is  discharged. 

Second.  By  lapse  of  time  when  ninety  days  have  elapsed  since  the  filing  of 
the  claim,  and  no  action  shall  have  been  commenced  to  enforce  the  claim. 


726  mechanic's  lien. 


Art.  9.     Liens  against  Municipal  Property  under  Contracts. 

Third.  By  satisfaction  of  any  judgment  that  may  be  rendered  in  actions  to 
foreclose  said  liens  or  claims. 

Fourth.  By  the  contractor  depositing  with  the  said  financial  officer  of  the  said 
cities  such  a  sum  of  money  as  shall  be  directed  by  a  justice  of  the  Supreme 
Court,  which  shall  not  be  less  than  the  amount  claimed  by  the  lienor,  with  in- 
terest thereon,  for  the  term  of  one  year,  and  such  additional  amount  as  the 
justice  shall  deem  sufficient  to  cover  the  liability  for  costs;  which  sum  of  money 
so  deposited  shall  remain  with  the  said  financial  officer  until  the  said  lien  shall 
have  been  discharged  in  the  manner  provided  for  in  the  subdivisions  hereof 
marked  one,  two  and  three.  (This  subdivision  added  by  chap.  6S2,  Laws  of 
1896.) 

§  14.  Term  contractor  defined. 

The  term  "  contractor,"  as  used  in  this  act,  shall  be  construed  as  meaning  the 
person  or  persons,  firms  or  corporations  with  whom  the  contract  with  the  said 
municipal  corporation,  county,  town,  city  or  village,  is  made,  his  assigns  or 
legal  representatives. 

§  15.  When  act  to  take  effect;  repealing  clause. 

This  act  shall  take  effect  immediately;  but  nothing  herein  contained  shall 
affect  the  validity  of  any  claims  or  liens  upon  moneys  due  or  to  grow  due  under 
contracts  made  by  cities  prior  to  its  passage.  All  acts  and  parts  of  acts  incon- 
sistent with  the  terms  of  this  act  are  hereby  repealed. 

§  16.  Cases  to  which  act  shall  apply. 

This  act  shall  apply  to  and  include  all  cases  and  contracts  under  which  work  and 
materials  have  heretofore  been  or  shall  hereafter  be  done  and  furnished  upon 
any  land,  the  title  of  which  was,  at  the  time  of  the  making  the  contract,  and 
now  is  in  any  municipal  corporation,  county,  town,  city  or  village,  and  for  the 
performance  of  which  appropriations  have  been,  or  shall  hereafter  be  made  and 
raised  by  any  municipal  corporation,  county,  town,  city  or  village;  and  shall 
apply  to  and  include  actions  now  pending  for  work  done  and  materials  fur- 
nished under  any  such  contract. 

The  foregoing  act  follows  the  ninth  edition  revised  Statutes. 
The  amendment,  Chapter  629,  Laws  of  1892,  referred  only  to  the 
title  of  the  Act,  which  is  given  as  amended.  By  the  same  chapter 
,^  1 5  was  amended ;  this  amendment  was  evidently  intended  to 
apply  to  the  section  which  was  added  by  Chapter  429  of  the  Laws 
of  1 88 1,  and  there  designated  as  §  16.  Section  15  of  the  original 
Act  prescribed  when  it  should  take  effect,  and  contained  a  repealing 
clause.  In  the  ninth  edition  the  original  §  15  has  been  omitted 
and  the  added  §  16  is  numbered  as  15  to  conform  to  the  amend- 
ment of  1892. 

A  notice  of  lien  under  a  contract  made  with  the  Board  of  Edu- 
cation of  Brooklyn  must  be  served  on  the  city  treasurer,  and  not 
on  the  comptroller.      Yellow  Pine  Co.  v.  Board  of  Education,  15 


mechanic's  lien.  727 


Art.  9.     Liens  against  Municipal  Property  under  Contracts. 

Misc.  58,  36  N.  Y.  Supp.  922.  A  lien  can  not  be  filed  against 
municipal  property  unless  expressly  authorized  by  the  statute; 
such  corporation  being  an  artificial  person  in  law  is  not  subject  to 
liens  for  labor  or  materials  in  the  absence  of  statutory  provision. 
Bossier  V.  Putney,  53  Supr.  Ct.  456;  Leonard  \.  City  of  Brooklyn, 
71  N.  Y,  498.  A  corporation  is  a  person  within  the  meaning  of 
the  statute  and  may  acquire  a  lien  for  labor  and  materials. 
Gaskellv.  Beard,  58  Huji,  loi,  11  Supp.  399,  33  St.  Rep.  852. 

A  contract  with  the  trustees  of  public  schools  in  the  city  of 
New  York  was  held  to  have  been  made  with  the  city.  Bell  v. 
The  Mayor  of  New  York,  105  N.  Y.  139.  A  lien  for  labor  or 
materials  against  funds  retained  by  a  municipal  corporation  can- 
not be  enforced  unless  the  fund  arose  upon  the  contract  under 
which  the  labor  was  performed  or  the  materials  were  furnished. 
Qiiinlan  v.  Russell,  94  N.  Y.  350.  There  is  no  provision  in  the 
statute  for  work  done  under  a  municipal  contract,  which  authorizes 
personal  judgment  against  the  contractor  in  case  the  sub-contractor 
fails  to  establish  a  lien.      Scerbo  v.  Smith,  16  Misc.  102. 

An  allegation  in  the  'complaint  of  a  sub-contractor  that  the 
contractor  entered  on  the  performance  of  an  agreement  between 
himself  and  the  city  and  "that  the  same  is  now  in  process  of  com- 
pletion or  completed,"  fails  to  show  moneys  due  from  the  city  to 
the  contractor,  or  that  there  will  be  any  moneys  due  and  does  not 
set  forth  a  cause  of  action.  Brenchaiul  \.  The  Mayor ^di  Hun, 
564,  16  Supp.  347,  41  St.  Rep.  158. 

Where  an  action  is  brought  to  foreclose  a  lien  filed  by  the 
plaintiff  against  money  due  or  to  grow  due  to  a  contractor  for 
work  done  under  a  contract  with  the  city  of  New  York,  and  the 
city  interposes  an  answer  admitting  that  it  is  a  municipal  corpora- 
tion and  that  the  lien  was  filed,  but  alleging  that  it  has  no  knowl- 
edge or  information  sufficient  to  form  a  belief  as  to  any  of  the 
other  allegations  of  the  complaint,  the  burden  rests  upon  the 
lienor  to  show  that  the  money  was  due  to  the  contractor  under 
the  contract  in  question.     Smyth  v.  Marsich,  4  App.  Div.  171. 


728  mechanic's  lien. 


Art.  9.     Liens  against  Municipal  Property  under  Contracts. 

Precedent  for  Notice  of  Lien   Against  Municipal  Property. 

To  the  Board  of  Contract  and  Apportionment  of  the  City  of  Albany, 
Oren  E.  Wilson,  mayor  of  said  city;  Charles  H.  Gaus,  street 
commissioner  of  said  city;  Horace  Andrews,  city  engineer  and 
surveyor,  and  William  H.  Haskell,  chamberlain  of  the  city  of 
Albany. 

Notice  is  hereby  given  that  Azro  D.  Morse,  as  surviving  partner 
of  the  firm  of  Webster  &  Morse,  residing  at  Barry  in  the  State  of 
Vermont,  claims  a  lien  pursuant  to  the  provisions  of  chapter  315  of 
the  laws  of  the  State  of  New  York,  passed  in  1878,  as  amended  by 
chapter  629  of  the  laws  of  1892  and  the  acts  amendatory  thereof  and 
supplementary  thereto,  for  materials  furnished  by  the  said  firm  of 
Webster  &  Morse  between  the  26th  day  of  August,  1895,  and  the 
15th  day  of  October,  1895,  as  follows,  80,000  dimension  granite 
blocks  furnished  to  Henry  J.  Vandenburgh  and  used  by  said  Van- 
denburgh  in  the  execution  and  completion  of  a  certain  contract  made 
between  said  Henry  J.  Vandenburgh,  of  the  city  of  Albany,  N.  ¥., 
and  the  said  city  of  Albany,  in  the  State  of  New  York,  dated  on  the 
26th  day  of  August,  1895,  for  repaving,  etc.,  Third  avenue  from 
Elizabeth  to  Hawk  streets  in  the  said  city  of  Albany. 

The  amount  claimed  by  this  claimant  is  the  sum  of  thirty-one  hun- 
dred and  two  dollars  and  thirty  cents  ($3,102.30)  with  interest 
thereon  from  the  5th  day  of  December,  1895,  which  is  the  amount  of 
claimant's  demand  after  deducting  all  just  credits  and  offsets,  and 
which  amount  is  due  from  the  said  Henry  J.  Vandenburgh  to  the 
said  firm  of  Webster  &  Morse. 

That  the  name  of  the  person  to  whom  the  said  firm  of  Webster  & 
Morse  furnished  said  materials  is  Henry  J.  Vandenburgh,  the  con- 
tractor aforesaid. 

The  following  is  a  statement  of  the  terms,  time  given  and  con- 
ditions of  the  contract,  namely,  that  the  said  firm  of  Webster  & 
Morse  were  to  deliver  to  the  said  Henry  J.  Vandenburgh,  free  on 
board  cars  at  Albany,  N.  Y.,  80,000  dimension  granite  blocks  at  $60 
per  thousand,  and  the  said  Henry  J.  Vandenburgh  agreed  to  pay 
therefor  the  -sum  of  ;$4,8oo  immediately,  on  the  delivery  of  the  same. 
The  said  Henry  J.  Vandenburgh  has  paid  freight  bills  amounting  to 
$1,642.64  and  has  been  credited  with  the  further  sum  of  $54.96  for 
dimension  granite  blocks  not  used  in  the  paving  of  Third  avenue 
and  returned  to  the  claimants,  leaving  a  balance  due  and  unpaid  of 
$3,102. 30.^ 

That  said  materials  were  furnished  to  the  contra)Ctor  ano  were 
actually  used  in  the  execution  and  completion  of  the  contract  with 
the  said  city  of  Albany  as  aforesaid. 

That  the  whole  work  to  be  performed  by  the  said  Henry  J.  Van- 
denburgh for  the  said  city  under  said  contract  was  completed  on  the 
27th  day  of  November,  1895,  less  than  thirty  days  before  the  filing 
of  this  notice  and  is  not  yet  accepted  by  said  city. 

Dated  Albany,  N.  Y.,  December  5th,  1895. 


MECHANIC  S    LIEN. 


729 


Art.  9.     Liens  against  Municipal  Property  under  Contracts. 

Precedent  for  Notice  of  Pendency. 
SUPREME  COURT  — Albany  County. 


Azro  D.  Morse,  as  Surviving  Partner  of  the  Firm 
of  Webster  &  Morse,  Plaintiff, 

Henry  J.  Vandenburgh,  The  City  of  Albany,  James 
Feeney,  John  H.  Moran,  John  H.  Jackson, 
Michael  Huber,  John  Hartnett,  James  C.  Moore, 
Allen  Jones,  Gilbert  H.  Ackerman,  George  Welsh, 
Frederick  H.  Grey,  Patrick  Maloney,  Bernard  E. 
Maloney,  James  E.  Maloney,  Patrick  J.  Dunn  and 
Martin  Athy,  Defendants. 

Notice  is  hereby  given  that  an  action  has  been  commenced  and  is 
now  pending  in  this  court  upon  the  complaint  of  the  above-named 
plaintiff  against  the  above-named  defendants  for  the  foreclosure  of 
a  lien  bearing  date  the  5th  day  of  December,  1895,  filed  by  the 
plaintiff  above-named  on  the  said  5th  day  of  December,  1895,  with  tiie 
mayor  of  the  city  of  Albany  and  with  the  chamberlain  of  said  city  and 
with  the  clerk  of  the  board  of  contract  and  apportionment  of  said  city, 
upon  the  moneys  in  control  of  the  said  city  of  Albany,  due  or  to 
grow  due  under  a  certain  contract  entered  into  between  the  said  city 
of  Albany  and  the  defendant  Henry  J.  Vandenburgh  above  named, 
bearing  date  the  26th  day  of  August,  1895,  for  the  repaving,  etc., 
with  dimension  granite  blocks.  Third  avenue,  from  Elizabeth  to  Hawk 
streets  in  the  said  city  of  Albany,  and  which  said  lien  is  duly  filed  and 
entered  in  the  lien  docket  in  the  office  of  the  chamberlain  of  the 
said  city  of  Albany. 

Dated  Albany,  N.  Y.,  March  2d,  1896. 

PRATT   .V    LOG  AN, 

Plaintiff's  Attorney. 

Precedent  for  Complaint. 

SUPREME  COURT  — .\lbany  County. 

Azro  D.  Morse,  as  Surviving  Partner  of  the  Firm 
of  Webster  &  Morse,  Plaintiff, 

Henry  J.  Vandenburgh,  The  City  of  Albany,  James 
Feeney,  John  II.  Moran,  John  H.  Jackson, 
Mich  el  Huber,  John  Hartnett,  James  C.  Moore, 
Allen  Jones,  Gilbert  H.  Ackerman,  George  Welsh. 
Frederick  H.  Grey,  Patrick  Maloney,  Bernard  E. 
Maloney,  James  E.  Maloney,  Patrick  J.  Dunn  and 
Martin  Athy,  Defendants. 

The  plaintiff  above  named  complaining  of  the  defendants  above 
named,  alleges: 

I.  That  during  the  months  of  .'Vugust,  September  and  October, 
1895,  the  plaintiff  and  one  Hamilton  Webster  were  partners  engaged 


730  mechanic's  lien. 


Art.  9.     Liens  against  Municipal  Property  under  Contracts. 


in  the  business  of  dealing  in  granite  at  Barre,  Vermont,  under  the 
firm  name  and  Style  of  Webster  &  Morse ;  that  thereafter  and  before 
this  action  the  said  Hamilton  Webster  died  leaving  the  plaintiff  above 
named  his  sole  surviving  partner. 

2.  That  the  defendant  The  City  of  Albany  is  a  municipal  corpora- 
tion duly  incorporated  under  the  laws  of  the  State  of  New  York,  and 
exercising  the  powers  and  privileges  conferred  by  its  charter. 

3.  Upon  information  and  belief,  that  on  the  26th  day  of  August, 
1895,  the  defendant  Henry  J.  Vandenburgh  entered  into  a  written 
contract  with  the  defendant  the  City  of  Albany,  for  the  recurbing, 
repaving  with  dimension  granite  blocks,  etc..  Third  avenue,  from 
Elizabeth  street  to  Hawk  street,  in  the  said  city  of  Albany;  that  the 
whole  work  to  be  performed  by  the  said  Henry  J.  Vandenburgh 
under  said  contract  was  completed  on  the  27th  day  of  November, 
1895,  and  the  same  was  thereafter  duly  accepted  by  the  defendant 
the  said  City  of  Albany  whereby  the  said  defendant  the  City  of 
Albany  became  indebted  to  the  said  defendant  Henry  J.  Vanden- 
burgh, in  the  sum  of  thirteen  thousand  three  hundred  and  seventy 
dollars  and  sixty-one  cents  ($13,370.61);  that  the  defendant  the  City 
of  Albany  has  issued  to  the  defendant  Henry  J.  Vandenburgh  its 
several  certificates  of  indebtedness  on  account  of  said  contract  for 
the  sums  of  four  thousand  nine  hundred  and  thirty  dollars  and  ninety- 
two  cents  ($4,930-92)  and  three  thousand  eight  hundred  and  ninety- 
three  dollars  and  sixty-eight  cents  ($3,893.68)  respectively,  and  that 
no  other  payment  has  been  made  by  the  said  defendant  the  City  of 
Albany  to  the  said  defendant  Henry  J.  Vandenburgh  under  said 
contract. 

4.  That  between  the  26th  day  of  August,  1895,  and  the  15th  day 
of  October,  1895,  the  plaintiff  and  the  said  Hamilton  Webster,  con- 
stituting the  said  firm  of  Webster  &  Morse,  sold  and  delivered  to  the 
defendant,  Henry  J.  Vandenburgh,  eighty  thousand  (80,000)  dimen- 
sion granite  blocks  at  the  agreed  price  of  sixty  dollars  ($60)  per 
tliousand  free  on  board  cars  at  Albany,  N.  Y.,  for  which  the  defend- 
ant Henry  J.  Vandenburgh  promised  and  agreed  to  pay  the  sum  of 
forty-eight  hundred  dollars  ($4,800)  upon  delivery.  That  no  part  of 
the  same  has  been  paid  except  the  sum  of  sixteen  hundred  and  forty- 
two  dollars  and  sixty-four  cents  ($1,642.64),  being  the  amount  of 
freight  bills  paid  by  said  defendant  Henry  J.  Vandenburgh,  and  the 
further  sum  of  fifty-four  dollars  and  ninety-six  cents  ($54.96)  with 
which  amount  plaintiff  has  credited  the  said  Vandenburgh  for  dimen- 
sion granite  blocks  not  used  by  the  said  Vandenburgh,  and  returned 
to  plaintiff,  leaving  a  balance  due  and  owing  to  the  plaintiff,  as  sur- 
viving partner  of  the  said  firm  of  Webster  &  Morse,  from  the  defend- 
ant Henry  J.  Vandenburgh  of  three  thousand  one  hundred  and  two 
dollars  and  thirty  cents  ($3,102.30)  with  interest  from  the  15th  day 
of  October,  1895. 

5.  That  the  dimension  granite  blocks  sold  and  delivered  to  the 
defendant  Henry  J.  Vandenburgh  as  hereinabove  alleged,  were 
actually  used  by  the  said  Vandenburgh  in  the  execution  and  comple- 
tion of  the  contract  of  the  said  Henry  J.  Vandenburgh  with  the  said 
defendant  the  City  of  Albany  as  hereinbefore  alleged. 


mechanic's  lien.  731 


Art.  9.     Liens  against  Municipal  Property  under  Contracts. 

6.  That  on  the  5th  day  of  December,  1895,  the  plaintiff  above 
named  duly  filed  with  Oren  E.  Wilson,  mayor  of  the  city  of  Albany, 
being  the  head  of  the  department  or  bureau  haying  charge  of  the 
work  under  the  said  contract  with  the  said  Henry  J.  Vandenburgh, 
and  with  William  H.  Haskell,  city  chamberlain,  who  is  the  financial 
officer  of  the  city  of  Albany,  and  with  the  clerk  of  the  board  of  con- 
tract and  apportionment,  a  notice  of  the  lien,  as  follows,  to  wit: 

(Insert  notice  of  lien.) 

7.  Upon  information  and  belief,  that  the  defendants  James  Feeney, 
John  H.  Moran,  John  H.  Jackson,  Michael  Huber  and  John  Hart- 
nett,  comprising  the  firm  of  Huber  &  Hartnett,  James  C.  Moore, 
Allen  Jones,  Gilbert  H.  Ackerman,  George  Welsh  and  Frederick 
Grey,  comprising  the  firm  of  Welsh  &  Grey,  Patrick  Maloney, 
Bernard  E.  Maloney,  James  E.  Maloney,  Patrick  J.  Dunn  and  Mar- 
tin Athy  have  or  claim  to  have  some  interest  in  or  lien  upon  the 
funds  due  or  to  grow  due  to  the  said  contractor,  the  defendant 
Henry  J.  Vandenburgh,  from  the  defendant  the  City  of  Albany, 
under  the  contract  against  which  the  plaintiff's  lien  was  filed, 
which  liens,    if  any,    were   subsequent  to  the  lien  of  the   plaintiff. 

Wherefore,  plaintiff  demands  judgment  as  follows: 

1.  Against  the  defendant  Henry  J.  Vandenburgh  for  the  sum  of 
$3,102.30,  with  interest  thereon  from  the  15th  day  of  October,  1895, 
together  with  the  costs  of  this  action. 

2.  That  the  plaintiff  be  adjudged  to  have  a  valid  lien  against  the 
fund  due  or  to  grow  due  to  the  said  defendant  Henry  J.  Vanden- 
burgh from  the  said  defendant  the  City  of  Albany  under  a  contract 
bearing  date  the  26th  day  of  August,  1895,  for  the  repaving,  etc.,  of 
Third  avenue  in  said  city  of  Albany,  amounting  to  the  sum  of 
$3,102.30,  with  interest  from  the  15th  day  of  October,  1895,  together 
with  the  costs  of  this  action. 

3.  Determining  as  to  the  extent,  justice  and  priority  of  the  claims 
of  all  the  parties  to  this  action  as  against  the  said  fund,  and  directing 
that  the  defendant  the  City  of  Albany  shall  pay  over  to  the  plaintiff 
and  to  the  defendants  whose  claims  or  liens  shall  be  held  to  be  valid 
and  just,  in  the  order  of  their  priority  to  the  extent  of  the  sums 
severally  found  due  to  plaintiff  and  said  claimants  from  the  said 
defendant  Henry  J.  Vandenburgh,  so  much  of  the  fund  which  may 
be  due  from  the  said  defendant  the  City  of  Albany  to  the  said  de- 
fendant Henry  J.  Vandenburgh,  under  his  contract  as  aforesaid, 
against  which  the  several  liens  are  filed,  as  will  satisfy  their  several 
liens  or  claims,  with  interest  and  costs  to  the  extent  of  the  amount 
due  from  the  said  defendant  the  City  of  Albany  to  the  said  de- 
fendant Henry  J.  Vandenburgh,  and  for  such  other  and  further  re- 
lief as  to  the  court  may  seem  proper. 

PRA  FT  c\:  LOGAN, 

Plaintiff's  Attorneys. 


732 


MECHANIC  S    LIEN. 


Art.  g.     Liens  against  Municipal  Property  under  Contracts. 


Precedent  for  Judgment. 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York 
in  and  for  the  county  of  Albany,  held  at  chambers  in  the  city  of 
Albany,  on  the  24th  day  of  April,  1896. 

Present  —  Hon.  Alden  Chester,  Justice. 
SUPREME  COURT  — Albany  County. 


Judgment  of  the  24th  of 
April,  1896,4:50  P.  M. 


Azro  D.  Morse,  as  Surviving  Partner  of  the  Firm  of 
Webster  &  Morse,  Plaintiff, 

agst. 

Henry  J.  Vandenburgh,  The  City  of  Albany,  James 

Feeney,    John     H.     Moran,    John     H.    Jackson, 

Michael  Huber,  John   Hartnett,  James  C.  Moore, 

Allen  Jones,  Gilbert  A.  Ackerman,  George  Welsh, 

Frederick  H.  Grey,  Patrick  Maloney,  Bernard  E. 

Maloney,    James  E.    Maloney,  Patrick  J.    Dunn  I 

and  Martin  Athv.  Defendants.  [ 
'. J 

Upon  reading  and  filing  the  report  of  Norton  Chase,  referee  in 
the  above  entitled  action,  dated  April  23d,  1896,  and  the  order  con- 
firming said  report  dated  the  24th  day  of  April,  1896,  and  after  hear- 
ing Pratt  &  Logan,  attorneys  for  plaintiff  above  named  (recite  other 
appearances). 

Now,  on  motion  of  Pratt  &  Logan,  attorney  for  plaintiff  herein, 
it  is  hereby, 

Adjudged,  that  the  lien  of  the  plaintiff  Azro  D.  Morse,  as  surviving 
partner  of  the  firm  of  Webster  &  Morse,  is  a  valid  and  just  lien 
against  the  funds  in  the  possession  of  the  chamberlain  of  the  defend- 
ant the  City  of  Albany,  pursuant  to  a  contract  between  the  defend- 
ant the  City  of  Albany  and  the  defendant  Henry  J.  Vandenburgh, 
dated  August  26th,  1895,  for  the  paving,  etc.,  with  granite  block 
of  Third  avenue  from  Elizabeth  to  Hawk  street  in  the  city  of  Albany, 
to  the  amount  of  $3,101.30,  with  interest  thereon  from  the  30th  day 
of  November,  1895,  and  is  the  first  lien  in  order  of  priority  against 
the  said  fund,  and  the  defendant  the  City  of  Albany  is  hereby  directed 
to  pay  to  Pratt  &  Logan,  attorneys  for  said  plailitiff,  Azro  D.  Morse, 
as  surviving  partner  of  the  firm  of  Webster  &  Morse,  the  sum  of 
$3,102.30,  with  interest  thereon  from  the  30th  day  of  November, 
1895,  amounting  in  all  to  the  sum  of  $3,176.75,  together  with  the  sum 
of  $171.25  plaintiff's  costs  as  taxed,  making  a  total  of  $3,348.  It 
is  hereby 

Adjudged,  that  the  defendant  the  City  of  Albany  is  entitled  to 
retain  until  the  i6th  day  of  December,  1896,  out  of  the  moneys  due 
to  the  defendant  Vandenburgh  under  the  contract  aforesaid  the 
sum  of  $688.53,  being  five  per  cent  of  the  total  contract  price  for  said 


MECHANIC'S   LIEN.  733 


Art.  9.     Liens  against  Municipal  Property  under  Contracts. 


Avork,  and  is  also  entitled  to  expend  the  sum  or  any  part  thereof 
prior  to  said  date  in  accordance  with  the  terms  of  said  contract.  It 
is  hereby 

Further  adjudged,  that  the  lien  of  the  defendant  John  H.  Jackson 
is  a  valid  and  just  lien  to  the  amount  of  $1,082,  with  interest  thereon 
from  the  25th  day  of  November,  1895,  and  is  second  in  order  of 
priority;  and  the  defendant  the  City  of  Albany  is  hereby  di- 
rected to  pay  over  to  Peter  A.  Delaney,  attorney  for  the  defend- 
ant John  H.  Jackson,  the  balance  of  the  sum  of  $3,858.47  remaining 
in  the  possession  of  the  said  defendant  after  the  deduction  of  $688.53 
which  the  said  City  of  Albany  is  hereby  directed  to  retain  until  the 
i6th  day  of  December,  1896,  and  after  the  payment  of  the  lien  of 
the  plaintiff  Morse  and  the  plaintiff's  costs  in  this  action;  and  said 
balance  which  the  defendant  the  City  of  Albany  is  hereby  directed 
to  pay  to  the  defendant  John  H.  Jackson,  being  insufficient  to  pay 
his  lien  in  full,  the  defendant  the  City  of  Albany  is  also  hereby  directed 
to  pay  over  to  the  defendant  John  II.  Jackson,  on  the  i6th  day  of 
December,  1896,  sucli  sum  as  will  be  necessary  to  pay  in  full  the  lien 
of  defendant  Jackson,  with  interest  on  the  unpaid  balance  to  the 
date  of  such  final  payment  out  of  the  said  sum  of  $688.53,  which  the 
defendant  the  City  of  Albany  is  hereby  directed  to  retain  under  the 
terms  of  the  said  contract  for  the  period  of  one  year,  provided  that 
said  sum  to  be  retained  as  aforesaid  shall  not  have  been  expended 
by  the  defendant  the  City  of  Albany  pursuant  to  the  terms  of  the 
said  contract.  If  after  such  payments  the  lien  of  the  defendant 
Jackson  shall  not  be  paid  in  full  the  said  defendant  John  H.  Jackson 
shall  be  entitled  to  enter  judgment  for  whatever  sum  may  remain 
due  and  unpaid  against  the  defendant  personally,  and  it  is  hereby 
further 

Adjudged,  that  if  on  the  i6th  day  of  December,  1896,  there 
remains  '.n  the  possession  of  the  defendant  the  said  City  of  .\ll)any 
any  moneys  due  and  unpaid  to  the  defendant  Vandenburgh  under 
his  said  contract  with  the  said  City  of  Albany  after  the  payment  of 
the  liens  and  costs  hereinbefore  directed  to  be  paid,  the  said  (jty  of 
Albany  is  hereby  directed  to  pay  such  money  to  the  following  named 
defendants  whose  liens  are  valid  and  just  liens  in  the  amounts  here- 
inafter stated  in  the  order  of  their  priority:  to  the  defendants  Michael 
Huber  and  John  Hartnett  the  sum  of  seventy-five  dollars  ($75)  with 
interest  thereon  from  the  nth  day  of  November,  1895,  for  which 
amount  the  said  defendants  arc  herel)y  adjudged  to  have  a  valid  and 
just  lien,  which  lien  is  third  in  the  order  of  priority;  (recite  other 
like  provisions);  to  the  defendants  Patrick  Maloney,  Bernanl  E. 
Maloney  and  James  E.  Maloney  and  Patrick  J.  Dunn  the  sum  of 
sixty-seven  dollars  and  fifteen  cents  ($67.15)  with  interest  thereon 
from  the  30th  day  of  November,  1895,  to  the  defendant  M.irtin 
Athy  the  sum  of  $14.14  with  interest  thereon  from  the  30th  day  of 
November,  1S95,  for  which  sums,  respectively,  the  said  defendants 
are  hereby  adjudged  to  iiave  v.ilid  ancl  just  liens,  which  having  been 
filed  simultaneously  are  seventh  in  the  order  of  prioritv. 

J.   M.    P.OR  rilWK^K, 

Clerk. 


734  mechanic's  lien. 


Art.  lo.     Liens  on  Railroads,  Oil,  Gas  or  Water  Wells  and  Cemetery  Structures. 

ARTICLE    X. 

Liens  on  Railroads,  Oil,  Gas  or  Water  Wells  and 
Cemetery  Structures. 

Sub.  I.  Liens  on  railroads.     Laws  1875,  chap.  392. 

2.  Liens  on  oil,  gas  and  water  wells.     Laws  1880,  chap.  440. 

3.  Liens  on  gr.a.ve-stones  and  monuments.     Laws  1888,  chap.  543. 

Sub.  I.     Liens  on  Railroads. 

Chapter  392  of  the  Laws  of  1875,  is  entitled  "An  act  for  the 
better  security  of  railroad  employees  for  labor  performed,"  and 
authorizes  any  person  performing  labor  for  a  railroad  corporation 
to  file  with  the  county  clerk  notice  of  lien,  specifies  the  manner 
in  which  the  lien  may  be  enforced,  its  duration,  priority  and  man- 
ner in  which  it  may  be  discharged. 

The  practice  under  it  would  seem  to  be  analogous  to  that  under 
mechanic's  liens  as  heretofore  given. 

Sub.  2.   Liens  Against  Oil,  Gas  or  Water  Wells. 

Chapter  440  of  the  Laws  of  1880  is  entitled  "  An  act  to  provide 
for  the  protection  of  mechanics  and  others,"  and  provides  that 
any  person  performing  labor  about  the  sinking,  drilling  or  com- 
pleting of  any  oil  well,  etc.,  who  files  proper  notice  shall  have  a 
lien  for  the  value  of  labor  and  materials,  and  regulates  the  manner 
of  filing  and  enforcing  the  lien. 

In  the  absence  of  authorities,  and  in  view  of  the  fact  that  the 
law  must  necessarily  be  seldom  used,  reference  is  made  to  the 
statute  without  reprinting. 

Sub.  3.   Liens  on  Grave-Stones  and  Monuments. 

By  chapter  543  of  the  Laws  of  1888,  persons  manufacturing  or 
furnishing  grave-stones,  monuments,  inclosures  or  other  structures, 
may  acquire  a  lien  thereon  for  the  purchase-price.  The  act  is  en- 
titled, "  An  act  for  the  protection  of  dealers  in  monuments,  grave- 
stones, inclosures  or  other  structures  in  cemeteries,"  and  provides 
among  other  things  for  the  removal  from  the  burying  ground  of 
any  monument  to  the  outside  grounds  and  for  sale  of  the  structure 
so  removed. 

There  seems  to  be  no  provision  for  any  proceeding  in  the  courts 
and  reference  is  made  to  the  statute. 


MECHANIC  S   LIEN.  735 


Art.  10.     Liens  on  Railroads,  Oil,  Gas  or  Water  Wells  and  Cemetery  Structures. 

Persons  employed  in  any  of  the  sandstone,  granite,  bluestone, 
or  marble  quarries,  yards  or  docks  in  this  State,  where  the  same 
is  dressed,  cut  or  quarried,  may  file  lien  for  work  within  thirty 
days  after  completion  of  labor,  in  town  clerk's  office,  or  place 
where  chattel  mortgages  are  required  to  be  filed.  The  lien  is  to 
be  foreclosed  under  the  provisions  of  Code  of  Civil  Procedure  en- 
titled "Action  to  foreclose  chattel."  Lien  shall  not  extend  to 
materials  which  shall  have  become  part  of  any  building  or  struc- 
ture.    Laws  of  1896,  chap.  738. 

William  Brooks  was  granted  a  perpetual  injunction  in  which 
Charles  Tayntor  &  Co.  of  New  York  city,  monument  makers,  were 
restrained  from  removing  from  Greenwood  cemetery  a  tomb  be- 
cause it  had  not  been  paid  for.  Chapter  543  of  the  Laws  of  1888, 
giving  monument  makers  a  lien,  was  declared  by  Justice  Davy,  of 
the  Supreme  Court,  unconstitutional. 

The  facts  of  the  case  are  as  follows:  Brooks  some  time  in 
1893  ordered  a  granite  monument  and  other  mortuary  devices, 
costing  $1,850,  for  his  plot  in  Greenwood  cemetery.  He  paid 
$550  cash  and  executed  his  notes  for  the  balance.  Being  un- 
able to  pay  the  notes  when  they  became  due,  the  monument 
makers  placed  a  lien  on  the  monument  and  other  material  fur^ 
nished,  for  the  balance  of  their  claim,  amounting  to  $1,363.67, 
and  declared  an  intention  of  removing  the  work  and  disposing  of 
it  under  the  lien.  Mr.  Brooks,  whose  wife  and  daughter  are 
buried  in  the  plot,  learning  of  the  threats  of  removal,  procured  a 
temporary  injunction  from  Justice  Beekman.  The  case  came  up 
recently  for  trial  before  Justice  Davy,  who,  after  hearing  the  case, 
said : 

"The  act  in  question  is  almost  without  precedent  in  the  legis- 
lative history  of  the  State.  It  confers  upon  the  lienors  the  right 
to  go  upon  the  plaintiff's  burial  plot  and  dig  up  and  remove  the 
monument  and  sell  it  at  public  auction  without  the  consent  of  the 
owner,  and  without  instituting  legal  proceedings  of  any  kind.  In 
removing  the  monument  they  may  desecrate  the  graves  and  dis- 
turb the  remains  of  the  plaintiff's  deceased  wife  and  dauo-jiter 
and  the  statute  in  question  affords  him  no  protection.  The 
learned  counsel  for  the  defendants  contended  upon  the  argument 
that  desecrating  a  grave  is  merely  an  offense  to  sentiment,  and 
that  the  act  permitting  it  to  be  done  is  not  against  public  policy. 
Conceding  that  it  is  a  mere  matter  of  sentiment,  it  is  a  sentiment, 


736  mechanic's  lien. 


Art.  10.     Liens  on  Railroads,  Oil,  Gas  or  Water  Wells  and  Cemetery  Structures. 

however,  that  has  received  the  sanction  and  approval  of  mankind 
of  all  ages.  Every  civilized  country  regards  the  resting  place  of 
the  dead  as  hallowed  ground,  and  not  subject  to  lien  and  to  be 
sold  upon  execution  like  ordinary  property.  Courts  of  equity 
have  always  been  ready  to  restrain  those  who  threaten  to  dese- 
crate the  graves  of  the  dead,  and  to  protect  the  sentiment  of  nat- 
ural affection  which  the  surviving  kindred  and  friends  enter- 
tain for  their  departed  relatives.  It  is  a  sentiment  that  the 
Legislature  of  this  State  recognized  years  ago  by  passing  proper 
laws  to  preserve  and  protect  the  resting  places  of  the  dead. 

"It  is  elementary  that  the  highest  obligation  of  the  State  under 
its  Constitution  is  to  protect  and  defend  its  citizens  in  the  enjoy- 
ment of  their  property.  The  operation  of  this  statute  makes  the 
defendants  the  judges  in  their  own  cases.  They  have  the  right 
to  determine  and  say  they  shall  sell  the  property  after  the  claim 
has  not  been  paid,  when,  in  fact,  it  may  have  been  paid,  and  there 
is  no  tribunal  provided  for  by  the  act  before  whom  the  plaintiff 
can  appear  and  have  his  rights  adjusted.  The  Legislature  has 
attempted  by  this  act  to  take  from  an  individual  his  property  by 
mere  force  of  legislative  enactment,  and  to  give  it  to  another 
without  legal  process  and  without  giving  him  an  opportunity  to 
be  heard  and  defend  his  title  and  possession.  No  principle  is 
more  vital  to  the  administration  of  justice  than  that  no  man  shall 
be  condemned  in  his  person  or  property  without  notice  and  an 
opportunity  to  make  his  defence,"  adding  that  a  mere  filing  of  a 
lien  and  a  sale  under  it  is  not  due  process  of  law,  and  from  such 
an  act  a  court  of  equity  will  protect  the  property  of  the  living  and 
preserve  the  repose  of  the  dead.  Decision  at  Trial  Term,  New 
York  city,  17  Misc.  534,  of  cause  sent  back  for  trial,  91  Hun,  338. 

The  right  to  foreclose  a  lien  for  a  monument  under  chapter  543, 
Laws  1888,  depends  upon  the  expiration  of  the  specified  time 
after  service  by  the  superintendent  of  the  cemetery  of  the  notice 
of  lien  upon  the  lot  owner,  and  no  one  else  is  authorized  to  make 
such  service.  The  constitutionality  of  this  statute  was  raised  in 
a  suit  for  an  injunction  to  restrain  defendant  from  removing  a 
monument,  but  the  court  held  the  question  open.  It  decided 
that  the  statute  must  be  complied  with  strictly  before  its  provis- 
ions could  receive  consideration.  Brooks  v.  Tayntor,  91  Hun, 
338,  36  N.  Y.  Supp.  246,  70  St.  Rep.  822. 


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